Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminate.
Appears in 8 contracts
Samples: Purchase and Sale Agreement (Berkshire Income Realty Inc), Purchase and Sale Agreement (Berkshire Income Realty Inc), Purchase and Sale Agreement (Capital Realty Investors Ii LTD Partnership)
Escrow Provisions. Except for termination by Purchaser prior to expiration of the Due Diligence Period (in which case the Deposit shall be returned to Purchaser without any action by Seller), if for any reason the Closing does not occur, the Escrow Agent hereby acknowledges shall deliver the Deposit to Seller or Purchaser only upon receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied a written demand therefor from such party, subject to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and following provisions of this AgreementSection 19(c). If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any payment of the monies then held by it under Deposit, the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within five ten (510) business days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such period, the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action continue to hold such amount until otherwise directed by written instructions signed by Seller and Purchaser or a final judgment of a court. The parties acknowledge that the dispute between Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and that the Escrow Agent shall not be liable to either of the parties has been resolved pursuant to either clause (a) for any action or (b) aboveomission on its part taken or made in good faith, providedand not in disregard of this Agreement, however, in but shall be liable for its negligent acts. Seller and Purchaser shall jointly and severally indemnify and hold the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court harmless from and against all liabilities (including reasonable attorneys’ fees, expenses and disbursements) incurred in connection with the performance of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon the Escrow Agent’s obligations hereunder duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent. Purchaser shall terminatepay any income taxes on any interest earned on the Deposit. Notwithstanding anything stated to the contrary in this Agreement, Seller shall not be entitled to demand (and any such demand shall be void and ineffective) or receive the Deposit at any time prior to expiration of the Due Diligence Period.
Appears in 6 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (KBS Strategic Opportunity REIT, Inc.), Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
Escrow Provisions. (a) The Escrow Agent hereby acknowledges receipt by shall hold the Xxxxxxx Money in escrow in a bank account at a federally insured banking institution (the “Escrow Account”).
(b) The Escrow Agent shall hold the Xxxxxxx Money in escrow in the Escrow Account until the Closing or sooner termination of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep this Agreement and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, shall hold or apply such proceeds in accordance with the terms and provisions of this Agreementsubsection (b). The Seller and the Buyer understand that no interest is earned on the Xxxxxxx Money during the time it takes to transfer into and out of the Escrow Account. At the Closing, the Xxxxxxx Money shall be paid by the Escrow Agent shall to, or at the direction of, the Seller. If for any reason the Closing does not be entitled to any fees or compensation for its services hereunder. occur and either party makes a written demand upon the Escrow Agent shall be liable only to hold said sums and deliver for payment of such amount, the same Escrow Agent shall, prior to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any end of the monies then held by it under the terms of this Agreementnext Business Day, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection within five (5) business days 5 Business Days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such 5 Business Day period or if for any other reason the Notified Party Escrow Agent in a timely manner as aforesaidgood faith shall elect not to make such payment, the Escrow Agent shall take no further action continue to hold such amount until the dispute between otherwise directed by joint written instructions from the parties has been resolved pursuant to either clause (a) this Agreement or (b) above, provided, however, in the case a final judgment of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any a court of competent jurisdiction pending such adjudication and jurisdiction. However, the Escrow Agent shall have the right at any time to submit such resolution deposit the Xxxxxxx Money with the clerk of the court of the County in which the Land is located. The Escrow Agent shall give written notice of such dispute deposit to the Seller and the Buyer. Upon such court by action deposit the Escrow Agent shall be relieved and discharged of interpleaderall further obligations and responsibilities hereunder.
(c) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, whereupon that the Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or omission on its part, other than for its gross negligence or willful misconduct. The Seller and the Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including attorneys’ fees and disbursements, incurred in connection with the performance of the Escrow Agent’s obligations hereunder shall terminateduties hereunder.
(d) The Escrow Agent has acknowledged its agreement to these provisions by signing this Agreement in the place indicated following the signatures of the Seller and the Buyer.
Appears in 5 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Carey Watermark Investors Inc), Purchase and Sale Agreement (Carey Watermark Investors Inc)
Escrow Provisions. The Deposit and any other sums (including without limitation, any interest earned thereon) which the parties agree shall be held in escrow (collectively “Escrow Funds”), shall be held by Escrow Agent, in trust and disposed of only in accordance with the following provisions:
(a) Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Depositadminister, and disburse the Additional Deposit Escrow Funds pursuant to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not invest such Escrow Funds in a segregated, interest-bearing money market account at a national bank reasonably acceptable to Seller and Purchaser. In the event any interest or other income shall be earned on such Escrow Funds, such interest or other income shall become a part of the Escrow Funds and will be the property of the party entitled to any fees the Deposit pursuant to this Agreement. Purchaser’s and Seller’s Federal Identification Numbers are set forth below.
(b) At such time as Escrow Agent receives written notice from either Purchaser or compensation for its services hereunder. Seller, or both, setting forth the identity of the party to whom such Escrow Funds (or portions thereof) are to be disbursed and further setting forth the specific section or paragraph of the Agreement pursuant to which the disbursement of such Escrow Funds (or portions thereof) is being requested, Escrow Agent shall be liable only disburse such Escrow Funds pursuant to hold such notice; provided, however, that if such notice is given by either Purchaser or Seller but not both, Escrow Agent shall (i) promptly notify the other party (either Purchaser or Seller as the case may be) that Escrow Agent has received a request for disbursement, and (ii) withhold disbursement of such Escrow Funds for a period of ten (10) days after receipt of such notice of disbursement and if Escrow Agent receives written notice from either Purchaser or Seller within said sums ten (10) day period which notice countermands the earlier notice of disbursement, then Escrow Agent shall withhold such disbursement until both Purchaser and deliver the same Seller can agree upon a disbursement of such Escrow Funds. Purchaser and Seller hereby agree to send to the parties named herein other, pursuant to Section 15.6 below, a duplicate copy of any written notice sent to Escrow Agent and requesting any such disbursement or countermanding a request for disbursement.
(c) In performing any of its duties hereunder, Escrow Agent shall not incur any liability to anyone for any damages, losses, or expenses, except for willful default or breach of trust, and it shall accordingly not incur any such liability with respect to (i) any action taken or omitted in accordance good faith upon advice of its legal counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent under this Agreement, or (ii) any action taken or omitted in reliance upon any instrument, including any written notice or instruction provided for in this Agreement, not only as to its due execution and the validity and effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by a proper person or persons, and to conform with the provisions of this Agreement.
(d) Notwithstanding the provisions of Section 14.1(b) above, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement a dispute between Buyer Purchaser and Seller resulting sufficient, in any adverse claims and demands being made the sole discretion of Escrow Agent to justify its doing so or in connection with the event that Escrow Agent has not disbursed the Escrow Funds on or for before ten (10) days after the monies involved herein or affected herebyClosing Date, Escrow Agent shall refuse be entitled to comply with any such claims tender into the registry or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition custody of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending the Escrow Funds, together with such adjudication legal pleadings as it may deem appropriate, and thereupon be discharged from all further duties and liabilities under this Agreement. Any such legal action may be brought in a federal or state court in Wake County, North Carolina or, if is such courts do not have jurisdiction as to submit such resolution of such dispute to the parties or matters involved then such court by action as Escrow Agent shall determine to have jurisdiction thereof.
(e) Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Agent has received the Deposit and shall hold the Escrow Funds in escrow, and shall disburse the Escrow Funds pursuant to the provisions of interpleader, whereupon Escrow Agent’s obligations hereunder this Article XIV. A copy of the fully executed Agreement shall terminatebe delivered to both parties hereto.
Appears in 4 contracts
Samples: Purchase and Sale Agreement (Preferred Apartment Communities Inc), Purchase and Sale Agreement (Preferred Apartment Communities Inc), Purchase and Sale Agreement (Highwoods Realty LTD Partnership)
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminate.or
Appears in 4 contracts
Samples: Purchase and Sale Agreement (Equity Resource Group Inc Et Al), Purchase and Sale Agreement (Equity Resource Group Inc Et Al), Purchase and Sale Agreement (Equity Resource Group Inc Et Al)
Escrow Provisions. (a) The Escrow Agent hereby acknowledges receipt by shall hold the Exxxxxx Money in escrow in an interest-bearing bank account at a federally insured banking institution (the “Escrow Account”).
(b) The Escrow Agent shall hold the Exxxxxx Money in escrow in the Escrow Account until the Closing or sooner termination of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep this Agreement and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, shall hold or apply such proceeds in accordance with the terms and provisions of this Agreementsubsection (b). The Seller and the Buyer understand that no interest is earned on the Exxxxxx Money during the time it takes to transfer into and out of the Escrow Account. At the Closing, the Exxxxxx Money shall be paid by the Escrow Agent shall to, or at the direction of, the Seller. If for any reason the Closing does not be entitled to any fees or compensation for its services hereunder. occur and either party makes a written demand upon the Escrow Agent shall be liable only to hold said sums and deliver for payment of such amount, the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damagesshall, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall within 24 hours give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection within five (5) business days Business Days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such five Business Day period or if for any other reason the Notified Party Escrow Agent in a timely manner as aforesaidgood faith shall elect not to make such payment, the Escrow Agent shall take no further action continue to hold such amount until the dispute between otherwise directed by joint written instructions from the parties has been resolved pursuant to either clause (a) this Agreement or (b) above, provided, however, in the case a final judgment of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any a court of competent jurisdiction pending such adjudication and jurisdiction. However, the Escrow Agent shall have the right at any time to submit such resolution deposit the Exxxxxx Money with the clerk of the court of New York County. The Escrow Agent shall give written notice of such dispute deposit to the Seller and the Buyer. Upon such court by action deposit the Escrow Agent shall be relieved and discharged of interpleaderall further obligations and responsibilities hereunder.
(c) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, whereupon that the Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or omission on its part, other than for its gross negligence or willful misconduct. The Seller and the Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including attorneys’ fees and disbursements, incurred in connection with the performance of the Escrow Agent’s obligations hereunder shall terminateduties hereunder.
(d) The Escrow Agent has acknowledged its agreement to these provisions by signing this Agreement in the place indicated following the signatures of the Seller and the Buyer.
Appears in 4 contracts
Samples: Purchase and Sale Agreement (Interstate Hotels & Resorts Inc), Purchase and Sale Agreement (Interstate Hotels & Resorts Inc), Purchase and Sale Agreement (Interstate Hotels & Resorts Inc)
Escrow Provisions. (a) The obligations and duties of the Escrow Agent hereby acknowledges receipt by in connection herewith are confined to those specifically enumerated herein and the Escrow Agent shall not be liable or responsible for any act or failure to act on its part except for its own willful misconduct or gross negligence.
(b) The duties of the Initial Deposit paid by Buyer to Escrow Agent hereunder shall be applied limited to the Purchase Price under safekeeping of the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, Stock Certificates and the Additional Deposit to disposition of the extent received by Escrow Agent as provided in Section 1.04(a) hereof, same solely in accordance with the terms and provisions conditions hereof and no implied duties or obligations shall be read herein against the Escrow Agent.
(c) The Escrow Agent may act or refrain from acting with respect to any matter referred to herein in full reliance upon the advice of this Agreement. counsel of its choice, and shall be fully protected and released as to any matter with respect to which it shall have acted or refrained from acting upon the advice of such counsel.
(d) The Escrow Agent may rely or act upon orders or directions, instruments or signatures believed by it to be genuine and may assume that any person purporting to give any written notice, advice or instruction in connection therewith has been fully authorized to do so.
(e) The Escrow Agent shall not be entitled to bound by any fees modification, amendment, termination, cancellation, rescission or compensation for supercedence of the terms and conditions contained herein unless the same shall be in writing and signed by the other parties hereto. However, the Escrow Agent's duties as Escrow Agent hereunder shall not be affected, unless the Escrow Agent shall have given its services hereunder. prior written consent thereto.
(f) If the Escrow Agent shall be liable only uncertain as to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreementits duties or rights hereunder, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting taking any action other than to keep safely the Stock Certificates, until (a) it shall be directed otherwise in writing jointly by the rights Company and the Subscriber or by a final judgment or order of a court of competent jurisdiction. Any such judgment shall be delivered to the adverse claimants shall have been finally adjudicated in Escrow Agent with a written opinion of counsel setting forth that such judgment is final and that such court is a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and that Escrow Agent shall have been notified be fully protected in writing of such agreement signed by the parties hereto. relying thereon.
(g) The Escrow Agent shall not be required to disburse institute or defend any of action or legal proceeding involving the monies held terms and conditions contained herein. For all payments and deliveries made by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed the Escrow Demand (as hereinafter defined) from either Buyer or Seller Agent in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (hereof, the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give have full release, discharge and acquittance and shall not be subject to any claim on the part of any persons beneficially interested hereunder. It is expressly understood by the Company and the Subscriber agree, jointly and severally, to indemnify and hold harmless the Escrow Agent and its successors and assigns from and against any and all claims, disputes or defenses which may arise between the Company and the Subscriber.
(h) The Company and the Subscriber shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any and all loss, liability, costs or expenses in connection herewith including reasonable attorneys' fees, incurred on the part of the Escrow Agent or arising out of or in connection with its acceptance of, or the performance of its duties and obligations under, this Escrow Agreement, as well as the reasonable costs and expenses of defending against any claim or liability arising out of or relating to this Escrow Agreement, except for such loss, liability, costs or expenses resulting from Escrow Agent's own gross negligence or willful misconduct. Such obligations shall be borne by the Company.
(i) The Escrow Agent may at any time resign hereunder by giving written notice of resignation to the other party (parties hereto at least ten days prior to the “Notified Party”)date specified for such resignation to take effect, and upon the effective date of such resignation, the Stock Certificates then held by the Escrow Agent hereunder shall be turned over to a new escrow agent designated in writing by the Escrow Agent who shall be reasonably acceptable to the Company and the Subscriber and who shall have accepted all of the terms hereof, whereupon all of the Escrow Agent's obligations hereunder shall cease and terminate. If within five (5) business days after no such person shall have been approved by the giving of Company and the Subscriber by such noticedate, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave be entitled to deposit said monies into any the Stock Certificates with a court of competent jurisdiction pending such adjudication and to submit such resolution whereupon all of such dispute to such court by action of interpleader, whereupon the Escrow Agent’s 's obligations hereunder shall cease and terminate.
Appears in 3 contracts
Samples: Escrow Agreement (Wall Street Strategies Corp), Escrow Agreement (Wall Street Strategies Corp), Escrow Agreement (Wall Street Strategies Corp)
Escrow Provisions. (a) Escrow Agent hereby acknowledges receipt by shall hold the Deposit in escrow in an interest-bearing bank account at a federally insured banking institution (the “Escrow Account”).
(b) Escrow Agent shall hold the Deposit in escrow in the Escrow Account until the Closing or sooner termination of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep this Agreement and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, shall hold or apply such proceeds in accordance with the terms and provisions of this Agreementsubsection 14.5(b). Seller and Buyer understand that no interest is earned on the Deposit during the time it takes to transfer into and out of the Escrow Account. At the Closing, the Deposit shall be paid by Escrow Agent shall to, or at the direction of, Seller. If for any reason the Closing does not be entitled to any fees or compensation for its services hereunder. occur and either party makes a written demand upon Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions for payment of this Agreement, it being expressly understood that by acceptance of this Agreementsuch amount, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damagesshall, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected herebywithin twenty-four (24) hours, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)of such demand. If Escrow Agent does not receive a written objection within five (5) business days Business Days after the giving of such notice, Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If Escrow Agent does receive such written objection from the Notified Party within such five (5) Business Day period or if for any other reason Escrow Agent in a timely manner as aforesaidgood faith shall elect not to make such payment, Escrow Agent shall take no further action continue to hold such amount until the dispute between otherwise directed by joint written instructions from the parties has been resolved pursuant to either clause (a) this Agreement or (b) above, provided, however, in the case a final judgment of clause (a)a court of competent jurisdiction. However, Escrow Agent may bring an appropriate action or proceeding for leave shall have the right at any time to deposit said monies into any the Deposit with the clerk of the court of competent jurisdiction pending such adjudication and to submit such resolution New York. Escrow Agent shall give written notice of such dispute deposit to Seller and Buyer. Upon such court by action deposit Escrow Agent shall be relieved and discharged of interpleaderall further obligations and responsibilities hereunder.
(c) The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, whereupon that Escrow Agent shall not be deemed to be the agent of either of the parties, and Escrow Agent shall not be liable to either of the parties for any act or omission on its part, other than for its gross negligence or willful misconduct. Seller and Buyer shall jointly and severally indemnify and hold Escrow Agent harmless from and against all costs, claims and expenses, including attorneys’ fees and disbursements, incurred in connection with the performance of Escrow Agent’s obligations hereunder shall terminateduties hereunder.
(d) Escrow Agent has acknowledged its agreement to these provisions by signing this Agreement in the place indicated following the signatures of Seller and Buyer.
Appears in 3 contracts
Samples: Agreement of Purchase and Sale, Agreement of Purchase and Sale, Purchase and Sale Agreement
Escrow Provisions. The Escrow Agent hereby acknowledges receipt by will hold the Reservation Deposit and shall return or release the Reservation Deposit in accordance with the terms of this Agreement, upon judicial decree or the delivery to the Escrow Agent of a mutual declaration signed by the Initial Deposit paid by Buyer Reserving Party and Builder directing the Escrow Agent to act. Escrow Agent shall have no obligation or liability hereunder except as a depositary to retain the cash which may be applied deposited with it hereunder and to dispose of the Purchase Price under same in accordance with the terms hereof. Escrow Agent agrees shall be entitled to hold, keep rely and deliver the Initial Deposit, and the Additional Deposit to the extent act upon any written instrument received by it from the parties. Upon disposition by Escrow Agent as provided in Section 1.04(a) hereofAgent, in accordance with the terms and provisions hereof, of this Agreement. the funds deposited with or retained by Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. , Escrow Agent shall be liable only fully and finally released and discharged from any and all duties, obligations, and liabilities hereunder. The Escrow Agent’s sole liability hereunder shall be to hold said sums the Reservation Deposit, to make payments and deliver the same to the parties named herein distributions in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable otherwise to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties heretodischarge its obligations hereunder. Escrow Agent shall not be required to disburse liable for any of the monies held act performed in good faith or in reliance on any document instrument or statement believed by it under this Agreement unless in accordance with either a joint written instruction of Buyer to be genuine. The Reserving Party and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Builder jointly and severally agree to indemnify and hold harmless Escrow Agent from either Buyer all losses, costs and expenses that may be incurred as a result of its involvement in any litigation, including, but not limited to, attorneys’ fees, arising from the performance of its duties hereunder, provided that such losses, costs and expenses shall not have resulted from any action taken or Seller (omitted by the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent and for which it shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party have been adjudged grossly negligent or engaged in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminatewillful misconduct.
Appears in 3 contracts
Samples: Reservation Agreement, Reservation Agreement, Reservation Agreement
Escrow Provisions. The Escrow Agent hereby acknowledges receipt shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent of the Initial Deposit paid by Buyer to be applied genuine and to have been signed or presented by the Purchase Price under the terms hereofproper party or parties. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. The Escrow Agent shall not be entitled personally liable for any act it may do or omit to do hereunder as the Escrow Agent while acting in good faith and in the absence of gross negligence, fraud or willful misconduct, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s legal counsel shall be conclusive evidence of such good faith, in the absence of gross negligence, fraud or willful misconduct.
15.1 The Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation, excepting only orders or process of courts of law and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, the Escrow Agent shall not be liable to any fees of the parties hereto or compensation to any other person, firm or corporation by reason of such decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
15.2 The Escrow Agent shall not be liable in any respect on account of the identity, authorization or rights of the parties executing or delivering or purporting to execute or deliver this Agreement or any documents or papers deposited or called for its services hereunder. thereunder in the absence of gross negligence, fraud or willful misconduct.
15.3 The Escrow Agent shall be liable only entitled to hold said sums employ such legal counsel and deliver other experts as the same Escrow Agent may deem necessary to advise the Escrow Agent in connection with the Escrow Agent’s duties hereunder, may rely upon the advice of such counsel. The Escrow Agent has acted as legal counsel for the Company, and may continue to act as legal counsel for Company from time to time, notwithstanding its duties as the Escrow Agent hereunder. The Seller and the Buyer consent to the parties named herein Escrow Agent acting in accordance such capacity as legal counsel for the Company, including in connection with the provisions of any dispute arising under this Agreement, it being expressly understood and waive any claim that by acceptance such representation represents a conflict of this Agreement, interest on the part of the Escrow Agent. The Seller and the Buyer understand that the Escrow Agent is acting relying explicitly on the foregoing provision in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of entering into this Agreement.
15.4 The Escrow Agent’s responsibilities hereunder shall terminate if the Escrow Agent shall resign by giving written notice to the Seller and the Buyer. In the event of any disagreement between such resignation, the Buyer and the Seller resulting in shall appoint a successor Escrow Agent and the Escrow Agent shall deliver to such successor Escrow Agent any adverse claims escrow property and demands being made other documents held by the Escrow Agent.
15.5 If the Escrow Agent reasonably requires other or further instruments in connection with this Agreement or for obligations in respect hereto, the monies involved herein necessary parties hereto shall join in furnishing such instruments.
15.6 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or affected hereby, right of possession of the documents or the other escrow property held by the Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusinghereunder, the Escrow Agent shall make no delivery or other disposition of any of is authorized and directed in the monies then held by it under Escrow Agent’s sole discretion, (1) to retain in the terms of this Agreement, and in so doing Escrow Agent shall not become liable Agent’s possession without liability to anyone for all or any part of said documents or the other escrow property until such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants disputes shall have been finally adjudicated in settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction of after the monies involved herein time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or affected herebydefend any such proceedings, or (b2) all differences shall have been adjusted to deliver the escrow property and any other property and documents held by agreement between Seller and Buyer, and the Escrow Agent shall have been notified hereunder to a state or Federal court having competent subject matter jurisdiction and located in writing the City of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller New York, in accordance with the provisions hereinafter set forth. Upon receipt by applicable procedure therefore.
15.7 The Seller and the Buyer agree severally to indemnify and hold harmless the Escrow Agent and its partners, employees, agents and representatives from either Buyer any and all claims, liabilities, costs or Seller (expenses in any way arising from or relating to the “Notifying Party”) of duties or performance as Escrow Agent hereunder other than any notice such claim, liability, cost or request (expense to the “Escrow Demand”) to perform any act extent the same shall have resulted from the gross negligence, fraud or disburse any portion willful misconduct of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminate.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Nomura Credit & Capital, Inc.), Securities Purchase Agreement (Nomura Credit & Capital, Inc.), Securities Purchase Agreement (Nomura Credit & Capital, Inc.)
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereofBuyer. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, said Deposit and the Additional Deposit all other sums delivered to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, it pursuant hereto in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, agreement Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In ; and in so refusing, refusing Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller. Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by severally agree to indemnify and hold harmless Escrow Agent from either Buyer or Seller one half (the “Notifying Party”1/2) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by and all costs, damages and expenses, including reasonable attorneys' fees, that said Escrow Agent under may incur in its compliance in good faith with the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, ; provided, however, in this indemnity shall not extend to any act of gross negligence or willful malfeasance on the case part of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon the Escrow Agent’s obligations hereunder shall terminate.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Krupp Realty LTD Partnership Iv), Purchase and Sale Agreement (Krupp Realty LTD Partnership Vii)
Escrow Provisions. 10.1 The parties acknowledge that Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdis acting solely as a stakeholder at their request and for their convenience, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. that Escrow Agent shall not be entitled liable in its capacity as escrow agent to either of the parties for any fees act or compensation for omission on its services hereunderpart unless taken or suffered in bad faith, in willful disregard of this Agreement or involving gross negligence. The Escrow Agent shall be liable responsible only to hold said sums and deliver for the same to safekeeping of the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only Deposit and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event resolution of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with questions of fact or for the monies involved herein or affected hereby, law.
10.2 The Escrow Agent shall refuse is authorized to comply with act upon any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held document believed by it under the terms of this Agreement, to be genuine and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement be signed by the parties heretoperson purported to have signed it and will incur no liability in so acting. The Escrow Agent shall not be required to disburse bound by any waiver, modification, amendment, termination or revision of the monies held by it under this Agreement unless delivered in accordance with either a joint writing to the Escrow Agent and, if the duties of the Escrow Agent are affected, unless it shall have given its prior written instruction of consent. The Escrow Agent may cease to serve at any time without incurring any liability hereunder.
10.3 In the event that the Escrow Agent designated herein is for any reason unable or unwilling to serve or to continue to serve as escrow agent, Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)appoint a new escrow agent. If for any reason Buyer fails to designate a new escrow agent within five (5) business days after notice by the giving of such notice, Escrow Agent does not receive any written objection to of its resignation, the Escrow Demand from the Notified Party, Escrow Agent shall comply with be free to resign and to pick a substitute escrow agent of its choice (in its sole discretion), provided that such new escrow agent shall be a title insurance company or agency authorized to do business in Minnesota. The new escrow agent shall have all of the rights and perform all of the duties and obligations of the Escrow Demand. Agent as set forth in this Agreement, provided that no person shall serve as escrow agent unless he has executed a consent to abide by the terms of this Agreement.
10.4 If Buyer or Seller asserts any claim against the Escrow Agent does receive written objection from concerning the Notified Party Deposit, then the party asserting such claim (and its respective principals) shall indemnify and hold harmless the Escrow Agent for its costs in a timely manner as aforesaid, connection therewith if the Escrow Agent successfully defends such claim.
10.5 Escrow Agent is executing Exhibit L this Agreement to acknowledge receipt of the First Deposit and Escrow Agent’s responsibilities hereunder. Any amendment to this Agreement that is not signed by Escrow Agent shall take no further action until the dispute between be effective as to the parties has been resolved pursuant thereto, but shall not be binding on Escrow Agent. Escrow Agent shall accept the First Deposit and the Second Deposit with the understanding of the parties that Escrow Agent is not a party to this Agreement except to the extent of its specific responsibilities hereunder, and does not assume or have any liability of the performance or non-performance of Buyer or Seller hereunder to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminatethem.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Cri Hotel Income Partners L P), Purchase and Sale Agreement (Cri Hotel Income Partners L P)
Escrow Provisions. The Escrow Agent hereby acknowledges receipt by will hold the Reservation Deposit and shall return or release the Reservation Deposit in accordance with the terms of this Agreement, upon judicial decree or the delivery to the Escrow Agent of a mutual declaration signed by the Initial Deposit paid by Buyer Reserving Party and Developer directing the Escrow Agent to act. Escrow Agent shall have no obligation or liability hereunder except as a depositary to retain the cash which may be applied deposited with it hereunder and to dispose of the Purchase Price under same in accordance with the terms hereof. Escrow Agent agrees shall be entitled to hold, keep rely and deliver the Initial Deposit, and the Additional Deposit to the extent act upon any written instrument received by it from the parties. Upon disposition by Escrow Agent as provided in Section 1.04(a) hereofAgent, in accordance with the terms and provisions hereof, of this Agreement. the funds deposited with or retained by Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. , Escrow Agent shall be liable only fully and finally released and discharged from any and all duties, obligations, and liabilities hereunder. The Escrow Agent’s sole liability hereunder shall be to hold said sums the Reservation Deposit, to make payments and deliver the same to the parties named herein distributions in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable otherwise to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties heretodischarge its obligations hereunder. Escrow Agent shall not be required to disburse liable for any of the monies held act performed in good faith or in reliance on any document instrument or statement believed by it under this Agreement unless in accordance with either a joint written instruction of Buyer to be genuine. The Reserving Party and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Developer jointly and severally agree to indemnify and hold harmless Escrow Agent from either Buyer all losses, costs and expenses that may be incurred as a result of its involvement in any litigation, including, but not limited to, attorneys’ fees, arising from the performance of its duties hereunder, provided that such losses, costs and expenses shall not have resulted from any action taken or Seller (omitted by the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent and for which it shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party have been adjudged grossly negligent or engaged in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminatewillful misconduct.
Appears in 2 contracts
Samples: Reservation Agreement, Reservation Agreement
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of has agreed to hold the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to Indemnity Escrow and act as escrow agent in connection with the extent received by Escrow Agent as provided in Section 1.04(a) hereof, Transactions in accordance with the terms of this Agreement, the Indemnity Escrow Agreement, and provisions any other escrow agreement or instructions executed by Escrow Agent and the parties hereto.
(a) Upon receipt of the Deposit, Escrow Agent shall deliver to Seller and Purchaser written notice confirming Escrow Agent’s receipt of the Deposit, the date on which Escrow Agent received the Deposit and that the Deposit has been deposited as required by this Agreement. Escrow Agent shall not be entitled invest the Deposit in a money market account reasonably satisfactory to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this AgreementPurchaser, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer promptly provide Purchaser and Seller resulting in any adverse claims and demands being made in connection with or for confirmation of the monies involved herein or affected herebyinvestments made.
(b) If Closing occurs, Escrow Agent shall refuse deliver the Deposit to comply with Seller at Closing and the same shall be credited against the Purchase Price. If for any such claims or demands so long as such disagreement may continue. In so refusingreason Closing does not occur, Escrow Agent shall make no delivery deliver the Deposit to Seller or other disposition Purchaser only upon receipt of any of a written demand therefor from such party, except where this paragraph expressly provides for notice only from Purchaser. Subject to the monies then held by it under the terms last sentence of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or clause (b) all differences shall have been adjusted by agreement between Seller ), if for any reason the Closing does not occur and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either party makes a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller demand (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion upon the Escrow Agent for payment of the monies held by Escrow Agent under Deposit, the terms of this Agreement, Escrow Agent shall give written notice to the other party (of the “Notified Party”)Demand within one Business Day after receipt of the Demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within five (5) business days Business Days after the giving of such noticenotice by Escrow Agent, the Escrow Agent is hereby authorized to make the payment set forth in the Demand. If the Escrow Agent does not receive any such written objection within such period, the Escrow Agent shall continue to hold such amount until otherwise directed by written instructions signed by Seller and Purchaser or a final judgment of a court. Notwithstanding the foregoing provisions of this clause (b) if Purchaser delivers a notice to Escrow Agent stating that Purchaser has terminated this Agreement on or prior to the expiration of the Due Diligence Period, a copy of which notice shall be simultaneously delivered to Seller and Existing Operator, then Escrow Demand Agent shall immediately return the Deposit to Purchaser without the necessity of delivering any notice to, or receiving any notice from Seller, and Escrow Agent shall do so notwithstanding any objection by Seller.
(c) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and that the Escrow Agent shall not be liable to either of the parties for any action or omission on its part taken or made in good faith, and not in disregard of this Agreement, but shall be liable for its negligent acts and for any liabilities (including reasonable attorneys’ fees, expenses and disbursements) incurred by Seller or Purchaser resulting from the Notified PartyEscrow Agent’s mistake of law respecting the Escrow Agent’s scope or nature of its duties. Seller and Purchaser shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all liabilities (including reasonable attorneys’ fees, expenses and disbursements) incurred in connection with the performance of the Escrow Agent’s duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent. The Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Agent has received and shall hold the Deposit in escrow, and shall disburse the Deposit pursuant to the provisions of this Section 8.
(d) Purchaser and Seller, 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. 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 Seller 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 comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take have no further action until the dispute between the parties has been resolved pursuant to either clause (a) duties or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminateliability hereunder.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Griffin-American Healthcare REIT IV, Inc.), Purchase and Sale Agreement (Griffin-American Healthcare REIT IV, Inc.)
Escrow Provisions. 5.1 The Escrow Agent hereby acknowledges receipt may rely conclusively on, and shall be protected in acting upon, any notice, request, consent, instruction, affidavit or other instrument or document believed by him in good faith to be genuine and containing what purports to be the signature of any of the parties hereto or any investor in the Offering.
5.2 MGS and Palmera, jointly and severally, agree to save harmless, defend and indemnify the Escrow Agent against all claims, costs, damages, judgments, attorneys' fees, expenses, obligations, taxes, assessments, liabilities, actions, suits or charges made against the Escrow Agent by reason of any act or omission to act by him hereunder or in connection with any of the Initial Deposit paid by Buyer to be applied to the Purchase Price under transactions contemplated hereby and against any loss he may sustain in carrying out the terms hereof. of this Agreement, other than as a result of his gross negligence or willful misconduct.
5.3 The Escrow Agent agrees shall have no duties or obligations under this Agreement except as expressly set forth herein, shall be responsible only for the performance of such duties and obligations, shall not be required to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, take any action other than in accordance with the terms hereof and provisions shall not be in any manner liable or responsible for any loss or damage arising by reason of this Agreement. any act or omission to act by him hereunder or in connection with any of the transactions contemplated hereby, including, but not limited to, any loss that may occur by reason of forgery, false representations, the exercise of his discretion in any particular manner or for any other reason except for his gross negligence or willful misconduct.
5.4 The Escrow Agent shall not be entitled to bound by any fees notice of, or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance demand with the provisions respect to, any waiver, modification, amendment, termination, cancellation, rescission or supersession of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in unless the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused be in writing and signed by the gross negligence or willful malfeasance of Escrow Agentparties hereto. In the event of any disagreement between Buyer and Seller resulting in controversy or dispute arising hereunder or with respect to the construction hereof or any adverse claims and demands being made in connection with or for action to be taken by the monies involved herein or affected herebyEscrow Agent hereunder, the Escrow Agent shall refuse incur no liability from any action or omission to comply with any such claims or demands so long as such disagreement may continueact by him in good faith. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing The Escrow Agent shall not become be personally liable for any act the Escrow Agent may do or omit to anyone for do hereunder as the Escrow Agent while acting in good faith, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent's attorneys-at-law shall be conclusive evidence of such refusal; and good faith.
5.5 If the Escrow Agent receives a notice from any party that a dispute exists with respect to the delivery and/or ownership or right of possession of any Escrowed Document in his possession or of the Residual Cash Payment, the Escrow Agent shall refrain from acting until (a) retain the rights Escrowed Document and/or Residual Cash Payment in his possession and shall deliver such Escrowed Document and/or Residual Cash Payment in accordance with the joint written instructions of all parties to the dispute or a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected. The Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings with respect to any Escrowed Document. The Escrow Agent may resign and be discharged of his duties hereunder at any time by giving written notice to all of the adverse claimants parties hereto. Such resignation shall have been finally adjudicated take effect twenty (20) days after the giving of such notice or upon the earlier receipt by the Escrow Agent of an instrument of acceptance executed by a successor escrow agent and upon delivery by the Escrow Agent of the Escrowed Documents and Residual Cash Payment to such successor. The Escrow Agent shall also be discharged of his duties and obligations hereunder upon deposit in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted Escrowed Documents and/or Residual Cash Payment then held by agreement between Seller and Buyerhim hereunder, and all parties hereto submit to the personal jurisdiction of any such court and waive all rights to contest jurisdiction.
5.6 The Escrow Agent shall have been notified in writing of be entitled to employ such agreement signed by legal counsel and other experts as the parties hereto. Escrow Agent shall not be required may deem necessary to disburse any of advise the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply in connection with the Escrow Demand. If Agent's duties hereunder, may rely upon the advice of such counsel, and may pay such counsel reasonable compensation therefor.
5.7 MGS shall pay the Escrow Agent does receive written objection from for all services rendered pursuant to this Agreement at the Notified Party in a timely manner as aforesaid, hourly rate that the Escrow Agent customarily charges for legal services. MGS shall take no further action until also reimburse the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s out-of-pocket expenses incurred in fulfilling his obligations hereunder shall terminatehereunder.
Appears in 2 contracts
Samples: Reorganization Agreement (Maui General Store Inc), Escrow and Interim Operations Agreement (Maui General Store Inc)
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of (a) Within one (1) business day following the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions mutual execution of this Agreement, Seller and Buyer shall open escrow by delivering a fully executed copy of this Agreement to Chicago Title Company (“Escrow Holder”) at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, Attn: Xxxxxxxxx XxXxxx, Escrow Officer. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent The “Opening of Escrow” shall be liable only to hold said sums and deliver the same to date that this Agreement has been signed by the parties named herein in accordance and delivered to Escrow Holder, as evidenced by its signing and dating the Consent of Escrow Holder attached hereto. Each party shall execute escrow instructions on the standard form of Escrow Holder. This Agreement shall be attached to and made an exhibit to such escrow instructions. To the extent that such escrow instructions conflict with or are inconsistent with any of the provisions of this Agreement, it being expressly understood this Agreement shall control.
(b) The escrow for the purchase and sale of the Property shall be scheduled to close on September 30, 2014 (“Closing Date”). The closing of the escrow hereunder shall be referred to as the “Close of Escrow”.
(c) Before the Closing Date, Seller shall deliver to Buyer through escrow the following:
(i) A Grant Deed in the form of Exhibit “F” attached to and made a part hereof, conveying to Buyer fee simple title to the Real Property subject only to non-delinquent real property taxes and the Permitted Encumbrances;
(ii) A Xxxx of Sale in the form of Exhibit “G” attached to and made a part hereof, transferring to Buyer title to the Personal Property and the Intangible Property as required by this Agreement;
(iii) Copies of letters advising tenants under the Leases of the change in ownership of the Project and of the transfer of their security deposits in the form of Exhibit “H” attached to and made a part hereof which letters shall be delivered by Seller to the tenants promptly after Escrow Holder notifies Seller that the escrow has closed, as well as contact information for Buyer;
(iv) Two counterparts of an Assignment and Assumption of Leases in the form of Exhibit “I” attached hereto and made a part hereof executed by acceptance Seller;
(v) An updated Rent Roll (including a listing of all delinquent and prepaid rents) as of a date as close to the Closing Date as practical and no earlier than one week prior to the Close of Escrow, certified by Seller to be the same Rent Roll as used by Seller in the operation of the Project; and
(vi) Such conveyancing or transfer tax forms or returns, if any, as are required to be delivered or signed by Seller by applicable state and local law in connection with the conveyance of the Real Property;
(vii) An affidavit as required by the Foreign Investors Real Property Tax Act, as amended, and the California Revenue and Taxation Code Section 18805 et seq., executed by Seller;
(viii) An updated list of Personal Property which Escrow Holder shall attach as Exhibit “1” to the Xxxx of Sale; and
(ix) Any additional documents that Escrow Holder or the Title Company may reasonably require for the proper consummation of the transaction contemplated by this Agreement including but not limited to written approval of a closing statement consistent with this Agreement, Escrow Agent is acting in such affidavits as are customarily required by Title Company on the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made Title Company’s standard form in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any issuance of the monies then held by it under owner’s extended coverage title insurance policy, including a mechanics’ lien and judgment affidavit (which affidavit(s) are in the terms form and content of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusalExhibit “P” attached hereto); and a “gap closing” indemnity on the Title Company’s standard form assuring the Title Company against title issues arising after the Close of Escrow Agent shall refrain from acting until (a) and before the rights recording of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of Grant Deed the monies involved herein or affected hereby, or following business day (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, no such additional document shall expand any obligation, covenant, representation or warranty of Seller or result in any new or additional obligation, covenant, representation or warranty of Seller under this Agreement beyond those expressly set forth in this Agreement). In addition to the foregoing, Seller shall deliver to Buyer outside of escrow promptly after the Close of Escrow on the Closing Date the original Leases, all keys for the Property in Seller’s possession or control and any guarantees or warranties relating to Personal Property in Seller’s possession or control.
(d) Buyer shall deliver to escrow the balance of the Purchase Price on or before the Closing Date as provided in Section 2(b)(iii) and the following documents before the Close of Escrow:
(i) Two counterparts of an Assignment and Assumption of Leases in the case form of clause Exhibit “I” executed by Buyer;
(aii) Such conveyancing or transfer tax forms or returns, if any, as required to be delivered or signed by Buyer by applicable state and local law in connection with the conveyance of Real Property; and
(iii) Any additional documents that Escrow Holder or the Title Company may reasonably require for the proper consummation of the transaction contemplated by this Agreement including but not limited to written approval of a closing statement consistent with this Agreement (provided, however, no such additional document shall expand any obligation, covenant, representation or warranty of Buyer or result in any new or additional obligation, covenant, representation or warranty of Buyer under this Agreement beyond those expressly set forth in this Agreement).
(e) At the Close of Escrow, Escrow Holder shall (i) cause the Grant Deed to be recorded in San Diego County, (ii) deliver to Seller the Purchase Price, plus or minus Seller’s share of any expenses or prorations, (iii) deliver to Buyer the duly executed Xxxx of Sale, and (iv) deliver to Buyer and Seller one duly executed counterpart of the Assignment and Assumption of Leases.
(f) Expenses and costs concerning the escrow shall be payable as follows:
(i) Seller shall pay the portion of the Title Policy premium applicable to a standard coverage owner’s policy and any endorsements necessary to remove any disapproved exceptions that Seller has stated in writing it will remove, any documentary transfer taxes, the recording fees for the Grant Deed, and one-half (1/2) of the escrow fees;
(ii) Buyer shall pay the Title Policy premium in excess of Seller’s share described in Section 5(f)(i), and one-half(l/2) of the escrow fees;
(iii) Seller and Buyer shall each bear their respective legal and accounting fees and costs (if any); and
(iv) All other expenses and costs shall be shared by the parties according to the usual custom in San Diego County.
(g) Prior to the Close of Escrow, Seller shall provide Escrow Agent may bring an appropriate action or proceeding for leave Holder and Buyer with the certification required by Internal Revenue Code Section 1445. In addition, Seller will provide Escrow Holder and Buyer with the certification required to deposit said monies into any court show that withholding is not required pursuant to California Revenue and Taxation Code Sections 18805(d) and 26131(e).
(h) Possession of competent jurisdiction pending such adjudication and the Property shall be delivered to submit such resolution Buyer at the Close of such dispute Escrow, subject to such court by action the possession of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminatethe tenants under the Leases.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (RREEF Property Trust, Inc.)
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of (a) If the Initial Deposit paid by Buyer to be applied to is cash, the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums the cash Deposit in escrow in an interest-bearing bank account approved by Stayton and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request Purchaser (the “Escrow DemandAccount”).
(b) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, The Escrow Agent shall hold the Deposit in escrow in the Escrow Account until the Closing or sooner termination of this Agreement and shall hold or apply such proceeds in accordance with this Agreement. Stayton and Purchaser understand that no interest is earned on the Deposit during the time it takes to transfer into and out of the Escrow Account. If for any reason either party makes a written demand upon the Escrow Agent for payment of the Deposit, the Escrow Agent shall, within 24 hours, give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection within five (5) business days Business Days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such five Business Day period, the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no deposit the Deposit with the clerk of the Court. The Escrow Agent shall give written notice of such deposit to Stayton and Purchaser. Upon such deposit the Escrow Agent shall be relieved and discharged of all further action until obligations and responsibilities hereunder.
(c) The parties acknowledge that the dispute between Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties has been resolved pursuant to either clause (a) for any act or (b) aboveomission on its part, provided, however, in other than for its gross negligence or willful misconduct. Stayton and Purchaser shall jointly and severally indemnify and hold the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court harmless from and against all costs, claims and expenses, including attorneys’ fees and disbursements, incurred in connection with the performance of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon the Escrow Agent’s obligations hereunder shall terminateduties hereunder.
(d) The Escrow Agent has acknowledged its agreement to these provisions by signing this Agreement in the place indicated following the signatures of Stayton and the Purchaser.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Emeritus Corp\wa\), Purchase and Sale Agreement
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, Deposit and the Additional Deposit all other sums delivered to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, it pursuant hereto in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunderhereunder other than its customary one-time escrow fee. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Agreement Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall be entitled to refuse to comply with any such claims or demands so long as such disagreement may continue. In ; and in so refusing, refusing Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall be entitled to continue to refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forthhereinafter. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the an “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaidmanner, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), . Further Escrow Agent may bring an shall have the right at all times to pay all sums held by it (i) to the appropriate action party under the terms hereof, or proceeding for leave to deposit said monies (ii) into any court of competent jurisdiction pending such adjudication and to submit such resolution of such after a dispute to such court by action of interpleaderbetween or among the parties hereto has arisen, whereupon Escrow Agent’s 's obligations hereunder shall terminate. Seller and Buyer, jointly and severally agree to indemnify and hold harmless said Escrow Agent from any and all costs, damages and expenses, including reasonable attorneys' fees, that said Escrow Agent may incur in compliance with and in good faith in accordance with the terms of this Agreement; provided, however, this indemnity shall not extend to any act of gross negligence or willful malfeasance on the part of the Escrow Agent.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Cornerstone Core Properties REIT, Inc.)
Escrow Provisions. (a) The Escrow Agent hereby acknowledges receipt by Escrow Agent of shall hold the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdXxxxxxx Money, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by such Xxxxxxx Money is in the form of immediately available wired funds, in escrow in an interest-bearing bank account at First American Trust, FFB (the “Escrow Account”).
(b) The Escrow Agent as provided shall hold the Xxxxxxx Money in escrow in the Escrow Account until any termination of the transaction contemplated by this Agreement pursuant to Section 1.04(a) 7.3 hereof, the Closing or any other sooner termination of this Agreement and shall hold or apply such proceeds in accordance with the terms and provisions of this Agreementsubsection 14.5(b). The Sellers and the Buyer understand that no interest is earned on the Xxxxxxx Money during the time it takes to transfer into and out of the Escrow Account. At Closing, the Xxxxxxx Money shall be paid by the Escrow Agent to, or at the direction of, the Sellers. If the Closing does not occur as a result of a termination of this Agreement pursuant to Section 7.3, the Xxxxxxx Money, together with all interest earned thereon, shall be returned to Buyer. If the Closing does not be entitled to occur for any fees or compensation for its services hereunder. other reason and either party makes a written demand upon the Escrow Agent shall be liable only to hold said sums and deliver for payment of such amount, the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damagesshall, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall within 24 hours give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection within five three (53) business days Business Days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such three (3) Business Day period or if for any other reason the Notified Party Escrow Agent in a timely manner as aforesaidgood faith shall elect not to make such payment, the Escrow Agent shall take no further action continue to hold such amount until the dispute between otherwise directed by joint written instructions from the parties has been resolved pursuant to either clause (a) this Agreement or (b) above, provided, however, in the case a final judgment of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any a court of competent jurisdiction pending such adjudication and jurisdiction. However, the Escrow Agent shall have the right at any time to submit such resolution deposit the Xxxxxxx Money with the clerk of the court of Xxxx County, Illinois. The Escrow Agent shall give written notice of such dispute deposit to the Sellers and the Buyer. Upon such court by action deposit the Escrow Agent shall be relieved and discharged of interpleaderall further obligations and responsibilities hereunder.
(c) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, whereupon that the Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or omission on its part, other than for its gross negligence or willful misconduct. The Sellers and the Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including attorneys’ fees and disbursements, incurred in connection with the performance of the Escrow Agent’s obligations hereunder shall terminateduties hereunder.
(d) The Escrow Agent has acknowledged its agreement to these provisions by signing this Agreement in the place indicated following the signatures of the Sellers and the Buyer.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Duke Realty Limited Partnership/), Purchase and Sale Agreement (Duke Realty Limited Partnership/)
Escrow Provisions. The Deposit and any other sums (including, without limitation, any interest earned thereon) which the parties agree shall be held in escrow (herein collectively called the “Escrow Agent hereby acknowledges receipt Deposits”), shall be held by the Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdAgent, keep and deliver the Initial Depositin trust, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, disposed of only in accordance with the terms following provisions:
(a) The Escrow Agent shall invest the Escrow Deposits in government insured interest-bearing instruments reasonably satisfactory to both Buyer and Seller, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, and shall promptly provide Buyer and Seller with confirmation of the investments made.
(b) If the Closing occurs, the Escrow Agent shall deliver the Escrow Deposits to, or upon the instructions of, Seller on the Closing Date.
(c) If for any reason the Closing does not occur, the Escrow Agent shall deliver the Escrow Deposits to Seller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions of this AgreementSubsection (c). If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any payment of the monies then held by it under Escrow Deposits, the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)of such demand. If within five (5) business days after the giving of such notice, Escrow Agent does not receive any a written objection from the other party to the Escrow Demand from proposed payment within ten (10) days after such party’s receipt of such notice, the Notified Party, Escrow Agent shall comply with the Escrow Demandis hereby authorized to make such payment. If the Escrow Agent does receive such written objection from within such period, the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action continue to hold such amount until otherwise directed by written instructions signed by Seller and Buyer or a final judgment of a court.
(d) The parties acknowledge that the dispute between Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and that the Escrow Agent shall not be liable to either of the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate for any action or proceeding omission on its part taken or made in good faith, and not in disregard of this Agreement, but shall be liable for leave to deposit said monies into its negligent acts and for any court of competent jurisdiction pending such adjudication Liabilities (including reasonable attorneys’ fees, expenses and to submit such resolution of such dispute to such court disbursements) incurred by action of interpleader, whereupon Seller or Buyer resulting from the Escrow Agent’s obligations hereunder mistake of law respecting the Escrow Agent’s scope or nature of its duties. Seller and Buyer shall terminatejointly and severally indemnify and hold the Escrow Agent harmless from and against all Liabilities (including reasonable attorneys’ fees, expenses and disbursements) incurred in connection with the performance of the Escrow Agent’s duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.
(e) Buyer shall pay any income taxes on any interest earned on the Escrow Deposits. Buyer represents and warrants to the Escrow Agent that its taxpayer identification number is 00-0000000.
(f) The Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Agent has received and shall hold the Escrow Deposits in escrow, and shall disburse the Escrow Deposits pursuant to the provisions of this Article 13. The provisions of this Article 13 shall survive the Closing (and not be merged therein) or earlier termination of this Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Grubb & Ellis Apartment REIT, Inc.), Purchase and Sale Agreement (Grubb & Ellis Apartment REIT, Inc.)
Escrow Provisions. The Deposit and any other sums (including any interest earned thereon) which the parties agree shall be held in escrow (collectively “Escrow Funds”), shall be held by Escrow Agent, in trust and disposed of only in accordance with the following provisions:
(a) Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Depositadminister, and disburse the Additional Deposit Escrow Funds pursuant to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not invest such Escrow Funds in a segregated, interest-bearing money market account at a banking institution reasonably acceptable to Seller and Purchaser, as provided in Section 3.2 and such Escrow Funds shall, unless otherwise expressly set forth herein, be held at such banking institution until disbursed as provided herein, and all such disbursements shall be made to the appropriate payees directly from such banking institution. In the event any interest or other income shall be earned on such Escrow Funds, such interest or other income shall become a part of the Escrow Funds and will be the property of the party entitled to any fees the Deposit pursuant to this Agreement. Purchaser’s and Seller’s Federal Identification Numbers are set forth below.
(b) At such time as Escrow Agent receives written notice from either Purchaser or compensation for its services hereunder. Seller, or both, setting forth the identity of the party to whom such Escrow Funds (or portions thereof) are to be disbursed and further setting forth the specific section or paragraph of the Agreement pursuant to which the disbursement of such Escrow Funds (or portions thereof) is being requested, Escrow Agent shall disburse such Escrow Funds pursuant to such notice; provided, however, that if such notice is given by either Purchaser or Seller but not both (except as to a notice of termination delivered by Purchaser under the provisions of Section 6.4, as to which notice of Purchaser only shall be liable only required for the release to hold Purchaser of the Deposit by Escrow Agent hereunder), Escrow Agent shall (i) promptly notify the other party (either Purchaser or Seller as the case may be) that Escrow Agent has received a request for disbursement, and (ii) withhold disbursement of such Escrow Funds for a period of ten (10) days after receipt of such notice of disbursement and if Escrow Agent receives written notice from either Purchaser or Seller within said sums ten (10) day period which notice countermands the earlier notice of disbursement, then Escrow Agent shall withhold such disbursement until both Purchaser and deliver the same Seller can agree upon a disbursement of such Escrow Funds. Purchaser and Seller hereby agree to send to the parties named herein other, pursuant to Section 15.6 below, a duplicate copy of any written notice sent to Escrow Agent and requesting any such disbursement or countermanding a request for disbursement.
(c) In performing any of its duties hereunder, Escrow Agent shall not incur any liability to anyone for any damages, losses, or expenses, except for willful default, gross negligence or breach of trust, and it shall accordingly not incur any such liability with respect to (i) any action taken or omitted in accordance good faith upon advice of its legal counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent under this Agreement, or (ii) any action taken or omitted in reliance upon any instrument, including any written notice or instruction provided for in this Agreement, not only as to its due execution and the validity and effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by a proper person or persons, and to conform with the provisions of this Agreement.
(d) Notwithstanding the provisions of Section 14.1(b) (except as to a notice of termination delivered by Purchaser under the provisions of Section 6.4,, it being expressly understood that as to which notice of Purchaser only shall be required for the release to Purchaser of the Deposit by acceptance of this Agreement, Escrow Agent is acting hereunder), in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement a dispute between Buyer Purchaser and Seller resulting sufficient, in any adverse claims and demands being made the sole discretion of Escrow Agent to justify its doing so or in connection with the event that Escrow Agent has not disbursed the Escrow Funds on or for before ten (10) days after the monies involved herein or affected herebyClosing Date, Escrow Agent shall refuse be entitled to comply with any such claims tender into the registry or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition custody of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending the Escrow Funds, together with such adjudication legal pleadings as it may deem appropriate, and thereupon be discharged from all further duties and liabilities under this Agreement. Any such legal action may be brought in a federal or state court in Maricopa County, Arizona, or, if such courts do not have jurisdiction as to submit such resolution of such dispute to the parties or matters involved then such court by action as Escrow Agent shall determine to have jurisdiction thereof.
(e) Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that upon receipt of interpleaderthe Deposit the Escrow Agent shall hold the Escrow Funds in escrow, whereupon and shall disburse the Escrow Agent’s obligations hereunder shall terminateFunds pursuant to the provisions of this Article XIV.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Nuveen Global Cities REIT, Inc.)
Escrow Provisions. The Escrow Agent hereby acknowledges receipt shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent of the Initial Deposit paid by Buyer to be applied genuine and to have been signed or presented by the Purchase Price under the terms hereofproper party or parties. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. The Escrow Agent shall not be entitled personally liable for any act it may do or omit to do hereunder as the Escrow Agent while acting in good faith and in the absence of gross negligence, fraud or willful misconduct, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s legal counsel shall be conclusive evidence of such good faith, in the absence of gross negligence, fraud or willful misconduct.
16.1 The Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation, excepting only orders or process of courts of law and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, the Escrow Agent shall not be liable to any fees of the parties hereto or compensation to any other person, firm or corporation by reason of such decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
16.2 The Escrow Agent shall not be liable in any respect on account of the identity, authorization or rights of the parties executing or delivering or purporting to execute or deliver this Agreement or any documents or papers deposited or called for its services hereunder. thereunder in the absence of gross negligence, fraud or willful misconduct.
16.3 The Escrow Agent shall be liable only entitled to hold said sums employ such legal counsel and deliver other experts as the same Escrow Agent may deem necessary to advise the Escrow Agent in connection with the Escrow Agent’s duties hereunder, may rely upon the advice of such counsel. The Escrow Agent has acted as legal counsel for the Company, and may continue to act as legal counsel for Company from time to time, notwithstanding its duties as the Escrow Agent hereunder. The Seller and the Buyer consent to the parties named herein Escrow Agent acting in accordance such capacity as legal counsel for the Company, including in connection with the provisions of any dispute arising under this Agreement, it being expressly understood and waive any claim that by acceptance such representation represents a conflict of this Agreement, interest on the part of the Escrow Agent. The Seller and the Buyer understand that the Escrow Agent is acting relying explicitly on the foregoing provision in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of entering into this Agreement.
16.4 The Escrow Agent’s responsibilities hereunder shall terminate if the Escrow Agent shall resign, which it may do after giving 30 days’ advance written notice of resignation to the Seller and the Buyer. In the event of any disagreement between such resignation, the Buyer and the Seller resulting in shall appoint a successor the Escrow Agent and the Escrow Agent shall deliver to such successor Escrow Agent any adverse claims escrow property and demands being made other documents held by the Escrow Agent.
16.5 If the Escrow Agent reasonably requires other or further instruments in connection with this Agreement or for obligations in respect hereto, the monies involved herein necessary parties hereto shall join in furnishing such instruments.
16.6 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or affected hereby, right of possession of the documents or the other escrow property held by the Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusinghereunder, the Escrow Agent shall make no delivery or other disposition of any of is authorized and directed in the monies then held by it under Escrow Agent’s sole discretion, (1) to retain in the terms of this Agreement, and in so doing Escrow Agent shall not become liable Agent’s possession without liability to anyone for all or any part of said documents or the other escrow property until such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants disputes shall have been finally adjudicated in settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction of after the monies involved herein time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or affected herebydefend any such proceedings, or (b2) all differences shall have been adjusted to deliver the escrow property and any other property and documents held by agreement between Seller and Buyer, and the Escrow Agent shall have been notified hereunder to a state or Federal court having competent subject matter jurisdiction and located in writing the City of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller New York, in accordance with the provisions hereinafter set forth. Upon receipt by applicable procedure therefore.
16.7 The Seller and the Buyer agree severally to indemnify and hold harmless the Escrow Agent and its partners, employees, agents and representatives from either Buyer any and all claims, liabilities, costs or Seller (expenses in any way arising from or relating to the “Notifying Party”) of duties or performance as the Escrow Agent hereunder other than any notice such claim, liability, cost or request (expense to the “Escrow Demand”) to perform any act extent the same shall have resulted from the gross negligence, fraud or disburse any portion willful misconduct of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminate.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Nomura Credit & Capital, Inc.), Stock Purchase Agreement (Nomura Credit & Capital, Inc.)
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided (a) The $65,000 deposit described in Section 1.04(a3.2 (a) hereof(the "Deposit") shall be delivered to and held by Xxxxx Xxxxxx & Xxxxxxxxxx, P.L.C. (the "Escrow Agent") until the Closing at which time the Deposit shall be paid to Seller or until it is otherwise paid out in accordance with the joint written instructions of Seller and Purchaser or in accordance with this agreement; provided, however, that if Purchaser shall terminate this agreement at or prior to the expiration of the Due Diligence Period, the Deposit shall be disbursed to Purchaser.
(b) The parties agree that the duties of Escrow Agent under this agreement are subject to the following terms and provisions conditions which shall govern and control the rights, duties, liabilities and immunities of this AgreementEscrow Agent.
(i) The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience. Escrow Agent shall is not be entitled a party to and is not bound by any fees or compensation for its services hereunderother agreement between the parties. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties heretoonly. Escrow Agent shall not be required deemed to disburse be the agent of either of the parties and Escrow Agent shall not be liable to either of the parties for any act or omission on its part unless taken or suffered in bad faith, in willful disregard of this agreement or involving gross negligence. Seller and Purchaser shall jointly and severally indemnify and hold Escrow Agent harmless from and against all costs, claims and expenses, including reasonable attorneys' fees and disbursements incurred in connection with the performance of the Escrow Agent's duties hereunder, except with respect to acts or omissions taken or suffered by Escrow Agent in bad faith, in willful disregard of this agreement or involving gross negligence on the part of Escrow Agent.
(ii) Escrow Agent may consult with and obtain advice of legal counsel in the event of any dispute or question as to the construction of any of the monies held by it under provisions of this Agreement unless agreement. Escrow Agent shall incur no liability and shall be fully protected in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller acting in good faith in accordance with the provisions hereinafter set forth. Upon receipt by opinion and instructions of its counsel.
(d) If the Closing does not occur and either Seller or Purchaser makes a written demand upon Escrow Agent from either Buyer for payment of the Deposit or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this AgreementDeposit, Escrow Agent shall give at least five (5) business days' written notice to the other party (of such demand and of its intention to release the “Notified Party”)Deposit to the other party on a stated date. If within five (5) business days after the giving of such notice, Escrow Agent does not receive any a written objection to the proposed payment before the proposed payment date, Escrow Demand from Agent may make the Notified Partypayment. If the other party delivers to Escrow Agent a written objection to the payment before the proposed payment date or if Escrow Agent shall be uncertain of its duties or in the event of a dispute, Escrow Agent shall comply with (i) continue to hold the Escrow Demand. If Deposit until otherwise directed by joint written instructions signed by both Seller and Purchaser or by a final judgment of a court of competent jurisdiction, or (ii) Escrow Agent does receive may deposit all or any portion of the Deposit with a court of competent jurisdiction and, after giving written objection from the Notified Party in a timely manner as aforesaidnotice of such action to Seller and Purchaser, Escrow Agent shall take have no further action until obligations or liability with respect to the Deposit.
(e) Escrow Agent is Seller's attorney. Seller and Purchaser each acknowledge and agree that, if a dispute between arises with respect to the parties has been resolved pursuant to either clause (a) Deposit or (b) above, provided, however, otherwise in the case of clause (a)connection with this agreement, Escrow Agent may bring an appropriate action or proceeding for leave continue to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminaterepresent Seller.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Westbury Metals Group Inc), Asset Purchase Agreement (Westbury Metals Group Inc)
Escrow Provisions. The Deposit and any other sums (including, without limitation, any interest earned thereon) which the parties agree shall be held in escrow (herein collectively called the “Escrow Agent hereby acknowledges receipt Deposits”), shall be held by the Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdAgent, keep and deliver the Initial Depositin trust, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, disposed of only in accordance with the terms following provisions:
(a) The Escrow Agent shall invest the Escrow Deposits in government insured interest-bearing instruments reasonably satisfactory to both Buyer and Seller, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, and shall promptly provide Buyer and Seller with confirmation of the investments made.
(b) If the Closing occurs, the Escrow Agent shall deliver the Escrow Deposits to, or upon the instructions of, Seller on the Closing Date.
(c) If for any reason the Closing does not occur, the Escrow Agent shall deliver the Escrow Deposits to Seller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions of this AgreementSubsection (c). If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any payment of the monies then held by it under Escrow Deposits, the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within five ten (510) business days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such period, the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action continue to hold such amount until otherwise directed by written instructions signed by Seller and Buyer or a final judgment of a court. Notwithstanding the dispute between foregoing, the Escrow Agent shall deliver the Refundable Portion of the Escrow Deposit to Buyer upon written request by Buyer (without any consent or approval by Seller) at any time prior to the expiration of the Due Diligence Period (as the same may be extended hereunder).
(d) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and that the Escrow Agent shall not be liable to either of the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate for any action or proceeding omission on its part taken or made in good faith, and not in disregard of this Agreement, but shall be liable for leave to deposit said monies into its negligent acts and for any court of competent jurisdiction pending such adjudication Liabilities (including reasonable attorneys’ fees, expenses and to submit such resolution of such dispute to such court disbursements) incurred by action of interpleader, whereupon Seller or Buyer resulting from the Escrow Agent’s obligations hereunder mistake of law respecting the Escrow Agent’s scope or nature of its duties. Seller and Buyer shall terminatejointly and severally indemnify and hold the Escrow Agent harmless from and against all Liabilities (including reasonable attorneys’ fees, expenses and disbursements) incurred in connection with the performance of the Escrow Agent’s duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.
(e) Buyer shall pay any income taxes on any interest earned on the Escrow Deposits. Buyer represents and warrants to the Escrow Agent that its taxpayer identification number is 00-0000000.
(f) The Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Agent has received and shall hold the Escrow Deposits in escrow, and shall disburse the Escrow Deposits pursuant to the provisions of this Article 13. The provisions of this Article 13 shall survive the Closing (and not be merged therein) or earlier termination of this Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)
Escrow Provisions. (a) The Escrow Agent hereby acknowledges receipt by shall hold the Deposit in escrow in an interest bearing bank account at JPMorgan Chase Bank (the “Escrow Account”).
(b) The Escrow Agent shall hold the Deposit in escrow in the Escrow Account until the Closing or sooner termination of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep this Agreement and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, shall hold or apply such proceeds in accordance with the terms and provisions of this AgreementSection 7.17(b). Seller and Purchaser understand that no interest is earned on the Deposit during the time it takes to transfer into and out of the Escrow Account. At the Closing, the Deposit shall be paid by the Escrow Agent shall to, or at the direction of, Seller. If for any reason the Closing does not be entitled to any fees or compensation for its services hereunder. occur and either party makes a written demand upon the Escrow Agent shall be liable only to hold said sums and deliver for payment of such amount, the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damagesshall, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall within 24 hours give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection within five (5) business days Business Days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such five (5) Business Day period or if for any other reason the Notified Party Escrow Agent in a timely manner as aforesaidgood faith shall elect not to make such payment, the Escrow Agent shall take no further action continue to hold such amount until the dispute between otherwise directed by joint written instructions from the parties has been resolved pursuant to either clause (a) this Agreement or (b) above, provided, however, in the case a final judgment of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any a court of competent jurisdiction pending such adjudication and jurisdiction. However, the Escrow Agent shall have the right at any time to submit such resolution deposit the Deposit with the clerk of the court of New York County. The Escrow Agent shall give written notice of such dispute deposit to Seller and Buyer. Upon such court by action deposit the Escrow Agent shall be relieved and discharged of interpleaderall further obligations and responsibilities hereunder.
(c) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, whereupon that the Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or omission on its part, other than for its gross negligence or willful misconduct. Seller and Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including attorneys’ fees and disbursements, incurred in connection with the performance of the Escrow Agent’s obligations hereunder shall terminateduties hereunder.
(d) The Escrow Agent is not responsible for levies by taxing authorities based upon the taxpayer identification number used to establish the Escrow Account.
(e) The Escrow Agent has no liability in the event of the failure, insolvency, or inability of the depositary to pay the Deposit upon demand for withdrawal.
(f) The Escrow Agent has acknowledged its agreement to these provisions by signing this Agreement in the place indicated following the signatures of Seller and Buyer.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Glimcher Realty Trust)
Escrow Provisions. Escrow Agent hereby acknowledges receipt Upon the execution of this Agreement by Buyer and Seller, and the acceptance of this Agreement by Escrow Agent in writing, this Agreement shall constitute the joint escrow instructions of Buyer and Seller to Escrow Agent to open the Escrow for the consummation of the Initial Deposit paid by Buyer transaction contemplated hereby pursuant to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Upon Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Agent’s receipt of the Deposit and Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by Agent’s written acceptance of this Agreement, Escrow Agent is acting authorized and agrees to act in accordance with the terms of this Agreement. Buyer and Seller shall promptly execute general escrow instructions based upon this Agreement at the request of Escrow Agent; provided, however, that if there is any conflict or inconsistency between such general escrow instructions and this Agreement, this Agreement shall control. At Closing, Escrow Agent shall pay any sum owed to Seller with immediately available United States federal funds. Upon receipt of a written demand from the Seller or Buyer pursuant to this Agreement (a “Demand”), Escrow Agent shall send a copy of such Demand to the other party. If, within five (5) Business Days after receipt thereof, such other party has not notified Escrow Agent of an objection to the disbursement of the Deposit as indicated in such Demand (a “Notice of Objection”), Escrow Agent shall comply with the instructions of such Demand. Each party agrees not to deliver a Notice of Objection without having a good faith reason for doing so. After receiving a Notice of Objection, Escrow Agent shall send a copy of such Notice of Objection to the party who made the Demand, and thereafter, in its reasonable discretion, the Escrow Agent may in the capacity event of conflicting instructions as to the disposition of the Deposit elect either (i) to continue to hold the Deposit until the Escrow Agent receives a written agreement of Buyer and Seller (or an order of a depository only court of competent jurisdiction) directing the disbursement of the Deposit, in which event the Escrow Agent shall disburse the Deposit in accordance with such agreement or order, or (ii) interplead the Deposit into any court of competent jurisdiction in connection with an action of interpleader or any other proceeding (including any court in which litigation between Seller and Buyer is then pending). Escrow Agent shall not be liable or responsible to anyone for any damagesaction taken or omitted in good faith and believed by it to be authorized or within the rights or powers conferred upon it by this Agreement and it may rely, losses and shall be protected in acting or expenses unless same shall refraining from acting in reliance, upon an opinion of counsel and upon any directions, instructions, notice, certificate, instrument, request, paper or other documents believed by it to be genuine and to have been caused made, sent, signed or presented by the proper party or parties. Escrow Agent shall be under no obligation to take any legal action in connection with the Deposit or this Agreement or to appear in, prosecute or defend any action or legal proceedings which would or might, in its sole opinion, cause it to incur any cost, expense, loss or liability unless, in advance, Escrow Agent shall be furnished with an indemnity, reasonably acceptable to Escrow Agent, against all such cost, expense, loss or liability. Notwithstanding any other provision of this Agreement, and except as otherwise set forth above, Buyer and Seller jointly indemnify and hold harmless Escrow Agent against any actual, out-of-pocket cost or expense incurred (in good faith and without gross negligence or willful malfeasance misconduct on its part) and arising out of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made or in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it its services under the terms of this Agreement, including the cost and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights expense of the adverse claimants shall have been finally adjudicated in a court defending itself against any claim of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties heretoliability. Escrow Agent shall not be required to disburse bound by any modification of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon affecting Escrow Agent’s obligations duties hereunder shall terminateunless the same is in writing and signed by Buyer, Seller and Escrow Agent.
Appears in 2 contracts
Samples: Loan Purchase and Sale Agreement, Loan Purchase and Sale Agreement (KBS Strategic Opportunity REIT, Inc.)
Escrow Provisions. The Escrow Agent hereby acknowledges receipt shall hold the amounts required under this Agreement in escrow upon the terms and conditions set forth in this Contract and Sections 2.5, 8.10 and 8.12 hereof.
(a) Escrow Agent shall hold the Escrow Amount in an interest bearing, non-commingled savings bank account.
(b) Escrow Agent shall have no liability whatsoever arising out of or in connection with its activity as Escrow Agent or for any error in judgment or for any act done or step taken or omitted in good faith, or for any mistake of fact or law, except for its gross negligence or willful misconduct. Seller and Buyer severally (and not jointly) agree to defend, indemnify and hold harmless Escrow Agent from and against any and all loss, cost, claim, cause of action, damage, liability and expense (including, without limitations, reasonable attorneys' fees and disbursements either paid to retain attorneys, court costs, or representing the fair value of legal services rendered by Escrow Agent to itself) which may be incurred by reason of the Initial Deposit paid by its acting as Escrow Agent, except in cases of Escrow Agent's gross negligence or willful misconduct.
(c) Seller and Buyer to be applied to the Purchase Price under the terms hereof. acknowledge that Escrow Agent agrees is merely a stakeholder. Upon payment of any amount held in escrow to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees either Seller or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein Buyer in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this AgreementContract, Escrow Agent shall be fully released from all liability and obligations with respect to such escrow amount.
(d) Escrow Agent shall be entitled to rely upon any judgment, certification, demand or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein, the propriety or validity thereof, or the jurisdiction of a court or competent jurisdiction or an arbitration panel convened in accordance with Section 16.17 issuing any such judgment. Escrow Agent may act in reliance upon (1) any instrument or signature believed to be genuine and duly authorized, and (2) advice of counsel in reference to any matter or matters connected herewith.
(e) It is acting agreed that the duties of Escrow Agent are only as herein specifically provided, and are purely ministerial in nature, and that Escrow Agent shall incur no liability whatsoever except for its willful misconduct or gross negligence. Seller and Buyer each release Escrow Agent from any act done or omitted to be done by Escrow Agent in good faith in the capacity performance of a depository its duties hereunder.
(f) The signing of this Contract by Escrow Agent is only to evidence Escrow Agent's acceptance of the terms and conditions of this Contract.
(g) Escrow Agent shall have the right, but not the obligation, to require and receive such written certifications or instructions from either Seller or Buyer as it deems reasonably necessary or appropriate before taking any action hereunder.
(h) Escrow Agent may assume the genuineness of any document or signature which appears to Escrow Agent to be genuine (whether or not original or photocopy) if such document or signature is presented to it by either party. Escrow Agent shall have no obligations other than those specifically set forth herein. Escrow Agent shall in no event be liable or responsible to anyone for any damagesfailure of any federally insured financial institution in which the escrows are deposited, losses or expenses unless same shall have been caused by of the gross negligence or willful malfeasance of Federal Deposit Insurance Corporation, to pay the escrow amounts at Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminate's direction.
Appears in 2 contracts
Samples: Purchase Contract (Hersha Hospitality Trust), Purchase Contract (Hersha Hospitality Trust)
Escrow Provisions. (Escrow Agent) acts herein only as the Escrow Agent hereby acknowledges receipt by for Producer and is not responsible for any act of commission or omission on the part or either PURCHASER or ARTIST. In furtherance thereof and for the benefit of (Escrow Agent), it is agreed that neither ARTIST or PURCHASER will name or join (Escrow Agent) as a party in any civil action or suit arising out of, in connection with, or related to any act(s) of commission or omission of PURCHASER or ARTIST and the PURCHASER and ARTIST jointly and severally agree to hold the (Escrow Agent) harmless from and against any and all expenses, costs, actions, claims, or liabilities (including reasonable attorney's fees) which may arise in connection with the Escrow Agent's performance of its duties hereunder, except for the willful misconduct or gross negligence of the Escrow Agent. The Escrow Agent may act or refrain from acting in respect of any matter arising in connection with the Initial Deposit paid by Buyer Escrow Fund, shall have no duties or obligations other than as stated herein and shall be protected in acting upon any notice, certificate, or other communication, not only as to the due execution and the validity and effectiveness of its provision, but also as to the truth and acceptability of any information therein contained, which it shall in good faith believe to be applied valid and to the Purchase Price under the terms hereofhave been signed or presented by a proper person or persons. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. The Escrow Agent shall not be entitled bound by any notice, or demand with respect thereto, or any waiver, modification, amendment, termination, or rescission of this contract unless in writing delivered to any fees or compensation for its services hereunder. the Escrow Agent, and if the duties of the Escrow Agent are affected, unless it shall have given its prior written consent thereto. If at any time there shall be liable only to hold said sums a controversy between PURCHASER and deliver the same ARTIST with respect to the parties named herein in accordance with Escrow Fund, the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in may upon notice to PURCHASER or ARTIST either (i) hold the capacity of Escrow Fund until otherwise directed by a depository only written instrument signed by PURCHASER and shall not be liable ARTIST or responsible to anyone for any damagesby an order, losses decree or expenses unless same shall have been caused judgment by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction which, by lapse of the monies involved herein time or affected herebyotherwise, shall no longer be or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required subject to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller appeal or an undisputed Escrow Demand review or (as hereinafter definedii) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to deposit the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party Fund in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication the final determination of any dispute among the parties hereto. Upon delivery of the Escrow Fund in accordance herewith, the obligations of the Escrow Agent shall cease with respect thereto and it shall not be required to submit such resolution of such dispute perform any further acts whatsoever pursuant to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminatethis contract.
Appears in 2 contracts
Samples: Performance Agreement, Performance Agreement
Escrow Provisions. (a) The check representing the Deposit shall be delivered to and held by the Escrow Agent hereby acknowledges receipt by Escrow Agent of until the Initial Closing at which time the Deposit shall be paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent Seller as provided described in Section 1.04(a) hereof3.2(a), or until it is otherwise paid out in accordance with the joint written instructions of Seller and Purchaser or in accordance with this agreement; provided, however, that if Purchaser shall terminate this agreement in accordance with the terms of Section 11.1 hereof, the Deposit shall be disbursed to Purchaser.
(b) The parties agree that the duties of Escrow Agent under this agreement are subject to the following terms and provisions conditions which shall govern and control the rights, duties, liabilities and immunities of this AgreementEscrow Agent.
(i) The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience. Escrow Agent shall is not be entitled a party to and is not bound by any fees or compensation for its services hereunderother agreement between the parties. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties heretoonly. Escrow Agent shall not be required deemed to disburse be the agent of either of the parties and Escrow Agent shall not be liable to either of the parties for any act or omission on its part unless taken or suffered in bad faith, in willful disregard of this agreement or involving gross negligence. Seller and Purchaser shall jointly and severally indemnify and hold Escrow Agent harmless from and against all costs, claims and expenses, including reasonable attorneys' fees and disbursements incurred in connection with the performance of the Escrow Agent's duties hereunder, except with respect to acts or omissions taken or suffered by Escrow Agent in bad faith, in willful disregard of this agreement or involving gross negligence on the part of Escrow Agent.
(ii) Escrow Agent may consult with and obtain advice of legal counsel in the event of any dispute or question as to the construction of any of the monies held by it under this Agreement unless in accordance with either a joint written instruction provisions of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminate.this
Appears in 2 contracts
Samples: Asset Purchase Agreement (Rosecap Inc/Ny), Asset Purchase Agreement (Rosecap Inc/Ny)
Escrow Provisions. Escrow Agent hereby acknowledges receipt The Deposit shall be held by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdTitle Company, keep and deliver the Initial Depositin escrow, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, disposed of only in accordance with the terms and following provisions:
(a) If the Closing occurs, the Title Company shall deliver the Deposit to Seller on the Closing Date.
(b) If for any reason the Closing does not occur, the Title Company shall deliver the Deposit to Seller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions of this Agreementparagraph. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone If for any damages, losses or expenses unless same shall have been caused by reason the gross negligence or willful malfeasance of Escrow Agent. In Closing does not occur and either party makes a written demand upon the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or Title Company for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any payment of the monies then held by it under Deposit, the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent Title Company shall give written notice to the other party (the “Notified Party”)of such demand. If the Title Company does not receive a written objection from the other party to the proposed payment within five ten (510) business days after the giving of such notice, Escrow Agent the Title Company is hereby authorized to make such payment. If the Title Company does not receive any such written objection within such ten (10) business day period, the Title Company shall continue to hold the Deposit until otherwise directed by written instructions signed by Seller and Buyer or a final judgment of a court.
(c) The parties acknowledge that the Title Company is acting solely at their request and for their convenience, that the Title Company shall not be deemed to be the agent of either of the parties, and that the Title Company shall not be liable to either of the parties for any action or omission on its part taken or made in good faith and not in disregard of this Agreement. Seller and Buyer shall jointly and severally indemnify and hold the Title Company harmless from and against all Liabilities incurred in connection with the performance of the Title Company’s duties hereunder, except with respect to actions or omissions taken or made by the Title Company in bad faith, in disregard of this Agreement or involving negligence on the part of the Title Company.
(d) Buyer shall pay any income taxes on interest (if any) earned on the Deposit. Buyer shall provide its taxpayer identification number to the Escrow Demand from the Notified Party, Escrow Agent shall comply Title Company concurrently with the Escrow Demand. If Escrow Agent does receive written objection from deposit of the Notified Party Initial Deposit.
(e) The Title Company has executed this Agreement in a timely manner as aforesaid, Escrow Agent the place indicated on the signature page hereof solely to confirm that the Title Company has received and shall take no further action until hold the dispute between Deposit in escrow and shall disburse the parties has been resolved Deposit pursuant to either clause the provisions of this Article 13. The provisions of this Article 13 shall survive the termination of this Agreement or the Closing (a) or (b) above, provided, however, in the case of clause (aas applicable), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminate.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (NTS Realty Holdings Lp)
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent Escrowee agrees to hold, keep and deliver the Initial Deposit, Deposit and the Additional Deposit all other sums delivered to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, it pursuant hereto in accordance with the terms and provisions of this Agreement. Escrow Agent Escrowee shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent Escrowee shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent Escrowee is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow AgentEscrowee. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent Escrowee shall be entitled to refuse to comply with any such claims or demands so long as such disagreement may continue. In ; and in so refusing, Escrow Agent refusing Escrowee shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent Escrowee shall not become liable to anyone for such refusal; and Escrow Agent Escrowee shall be entitled to continue to refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent Escrowee shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent Escrowee shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a BUSDOCS/1435908.8 joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forthhereinafter. Upon receipt by Escrow Agent Escrowee from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent Escrowee under the terms of this Agreement, Escrow Agent Escrowee shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent Escrowee does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent Escrowee shall comply with the Escrow Demand. If Escrow Agent Escrowee does receive written objection from the Notified Party in a timely manner as aforesaidmanner, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above. Further Escrowee shall have the right at all times to pay all sums held by it (i) to the appropriate party under the terms hereof, provided, however, in the case of clause or (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies ii) into any court of competent jurisdiction pending such adjudication and to submit such resolution of such after a dispute to such court by action of interpleaderbetween or among the parties hereto has arisen, whereupon Escrow AgentEscrowee’s obligations hereunder shall terminate.
Appears in 1 contract
Escrow Provisions. The Deposit and any other sums (including, without limitation, any interest earned on such other sums) which the parties agree shall be held in escrow (herein collectively called the “Escrow Agent hereby acknowledges receipt Deposits”), shall be held by the Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdAgent, keep and deliver the Initial Depositin trust, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, disposed of only in accordance with the terms following provisions:
(a) The Escrow Agent shall invest the Escrow Deposits in government insured non-interest bearing instruments reasonably satisfactory to both Buyer and Seller, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, except for such brief periods as may be necessary to receive, invest and transmit the same, and shall promptly provide Buyer and Seller with confirmation of the investments made.
(b) If the Closing occurs, the Escrow Agent shall deliver the Escrow Deposits to, or upon the instructions of, Seller on the Closing Date.
(c) If for any reason the Closing does not occur, the Escrow Agent shall deliver the Escrow Deposits to Seller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions of this AgreementSubsection (c). If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any payment of the monies then held by it under Escrow Deposits, the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within five ten (510) business days after the giving of such notice, the Escrow Agent is hereby authorized to make such payment. If the Escrow Agent does not receive any such written objection within such period, the Escrow Agent shall continue to hold such amount until otherwise directed by written instructions signed by Seller and Buyer or a final judgment of a court.
(d) Notice of any default, dispute or disagreement among Seller and Buyer with respect to the Escrow Demand from Deposits shall be given to the Notified PartyEscrow Agent as soon as reasonably practical after the same arises. Such notice shall be in writing and as thoroughly as possible describe the dispute, default or disagreement. The notice may be given by either party and upon receipt of such notice, Escrow Agent shall comply with notify all parties of the Escrow Demanddispute. If Escrow Agent does receive written objection from Subsequent to giving notice of default, dispute or disagreement among the Notified Party in a timely manner as aforesaidparties, Escrow Agent shall take no further action until not disburse funds or deliver documents or other items from escrow, or perform any other act required by this agreement except upon the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, howeverspecific and mutual agreement, in writing, signed by Seller and Buyer, or upon the case order of clause (a)a court of competent jurisdiction. In the event of default, dispute or disagreement about the interpretation of this Agreement or the propriety of any action contemplated by the Escrow Agent hereunder, or about the rights and obligations of any of the parties, the Escrow Agent may, in its sole discretion, file an action for interpleader or pursue other appropriate legal proceedings to resolve the matter. Whether suit is filed or not, the Escrow Agent may bring an appropriate in its reasonable discretion retain legal counsel for advice or representation in the event of default, dispute or disagreement and the parties agree to indemnify Escrow Agent for reasonable attorneys’ fees, costs, and expenses arising therefrom. The Escrow Agent shall otherwise not be liable for any mistakes of facts or error in judgment, or any acts or omissions of any kind unless caused by its willful misconduct or gross negligence, and Seller and Buyer agree to indemnify and hold the Escrow Agent harmless from any claims, demands, causes of action, liability, damages and judgments, including the costs of defending any action or proceeding for leave to deposit said monies into against it, together with any court of competent jurisdiction pending such adjudication reasonable attorneys’ fees, costs, and to submit such resolution of such dispute to such court by action of interpleader, whereupon legal expenses incurred in connection with the Escrow Agent’s undertaking pursuant to the terms and conditions of this Agreement.
(e) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and that the Escrow Agent shall not be liable to Seller or Buyer for any loss, costs, damages or expenses arising out of the following: (i) Escrow Agent’s compliance with any legal process, subpoena, writ, order, judgment, or decree of any court issued with or without jurisdiction and whether or not consequently vacated, modified, set aside or reversed, (ii) the default, error, action, omission or misrepresentation of Seller or Buyer to this Agreement, (iii) any loss or impairment of Escrow Deposits while those funds are in the process of being collected or while those funds are on deposit in a financial institution if such loss or impairment results from the failure, insolvency or suspension of a financial institution, (iv) the consequences of any delay or expiration of any time limit caused by any party to this Agreement, other than any delay caused by the willful misconduct or gross negligence of Escrow Agent, (v) the legal effect, insufficiency, or undesirability of any document deposited with Escrow Agent , delivered to or by Escrow Agent , or exchanged among the parties, (vi) any failure or delay in the surrender of possession of the Property or the rights or obligations hereunder of any party in possession of the Property, (vii) the financial status or insolvency of any party or misrepresentation made by any party to this Agreement, or (viii) any defect in title to the Property.
(f) The Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Agent has received and shall terminatehold the Escrow Deposits in escrow, and shall disburse the Escrow Deposits pursuant to the provisions of this Article 13. The provisions of this Article 13 shall survive the Closing (and not be merged therein) or earlier termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Global Income Trust, Inc.)
Escrow Provisions. SECTION 4.01. A. The Additional Space Fixed Rent paid hereunder (the "Escrowed Funds") shall be held in escrow by the Owner's attorney, Xxxxxx & Xxxx, LLP ("Escrow Agent"), 000 Xxxxxxx Xxxxxx, Suite 400, Garden City, New York 11530, upon the following terms and conditions:
(i) The Escrowed Funds shall be held in a non interest-bearing XXXX account at The Chase Manhattan Bank, 000 Xxx Xxxxxxx Xxxx, Xxxxx Xxxxx, New York 11514. Notwithstanding the foregoing, Escrow Agent hereby acknowledges receipt by shall not be liable to either party for any loss to any institutional failure.
(ii) If the Additional Space Commencement Date shall occur, the Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and shall deliver the Initial Deposit, and the Additional Deposit Escrowed Funds to the extent received by Escrow Agent as provided in Section 1.04(aOwner.
(iii) hereof, If this First Amendment to Lease is terminated in accordance with the terms and provisions of this Agreement. hereof, the Escrow Agent shall not be entitled pay the Escrowed Funds to any fees or compensation for its services hereunderTenant.
SECTION 4.02. It is agreed that the duties of the Escrow Agent are only as herein specifically provided, and are purely ministerial in nature, and the Escrow Agent shall incur no liability whatever except for willful misconduct or gross negligence, as long as the Escrow Agent has acted in good faith Owner and Tenant each hereby release the Escrow Agent from any act done or omitted to be liable only to hold said sums done by the Escrow Agent in good faith and deliver the same to the parties named herein in accordance with the provisions performance of this Agreement, it being expressly understood that by acceptance of this Agreement, its duties hereunder.
SECTION 4.03. The Escrow Agent is acting in as a stakeholder only with respect to the capacity of a depository only and shall not be liable or responsible Escrowed Funds. If there is any dispute as to anyone for any damages, losses or expenses unless same shall have been caused by whether the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse is obligated to comply with any such claims deliver the Escrowed Funds or demands so long as such disagreement may continue. In so refusingto whom said Escrow Funds is to be delivered, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse make any of delivery, but in such event the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may hold the same until the Escrow Agent receives an authorization in writing, signed by all the parties having any interest in such dispute, directing the disposition of the Escrowed Funds, or in the absence of such authorization the Escrow Agent may hold the Escrow Funds until the final determination of the rights of the parties in an appropriate proceeding. If such written authorization is not given, the Escrow Agent may, but is not required to, bring an appropriate action or proceeding for leave to deposit said monies into any the Escrowed Funds in court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminate.such
Appears in 1 contract
Samples: Lease Agreement (Candies Inc)
Escrow Provisions. (a) The Escrow Agent shall hold the Cash Deposit in escrow in an interest-bearing bank account at JPMorgan Chase Bank, N.A. (the “Escrow Account”). All funds held by the Escrow Agent hereunder shall be in a segregated (non-commingled) account established on behalf of and in trust for the Buyer and Sellers, as their interests may appear. The Cash Deposit account shall expressly not be a part of the estate of the Escrow Agent and the Escrow Agent hereby acknowledges receipt by disclaims any right to claim that the Cash Deposit is a part of the estate of the Escrow Agent.
(b) The Escrow Agent shall hold the Cash Deposit in escrow in the Escrow Account until the Closing or sooner termination of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep this Agreement and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, shall hold or apply such proceeds in accordance with the terms and provisions of this AgreementSection 14.5(b). The Sellers and the Buyer understand that no interest is earned on the Cash Deposit during the time it takes to transfer into and out of the Escrow Account. All interest earned on the Cash Deposit shall be added to the Cash Deposit. At Closing, the Cash Deposit shall be paid by the Escrow Agent shall to, or at the direction of, the Sellers. If for any reason the Closing does not be entitled to any fees or compensation for its services hereunder. occur and either party makes a written demand upon the Escrow Agent shall be liable only to hold said sums and deliver for payment of such amount, the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damagesshall, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall within 24 hours give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection within five (5) business days Business Days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such five (5) Business Day period, the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action continue to hold such amount until the dispute between otherwise directed by joint written instructions from the parties has been resolved pursuant to either clause (a) this Agreement or (b) above, provided, however, in the case a final judgment of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any a court of competent jurisdiction pending such adjudication and to submit such resolution jurisdiction. However, the Escrow Agent shall have the right after receipt of such dispute objection to deposit the Cash Deposit with the clerk of the court of New York County. The Escrow Agent shall give written notice of such court deposit to the Sellers and the Buyer. Upon such deposit the Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
(c) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or omission on its part, other than for its negligence or willful misconduct.
(d) The Escrow Agent has acknowledged its agreement to these provisions by action signing this Agreement in the place indicated following the signatures of interpleaderthe Sellers and the Buyer. This Agreement shall be fully enforceable upon execution hereof by the Buyer and Sellers. The failure of Escrow Agent to execute this Agreement shall not affect the enforceability of this Agreement.
(e) The Buyer and the Sellers acknowledge and agree that (i) the Escrow Agent shall not be responsible for levies by taxing authorities based upon the taxpayer identification number used to establish this interest bearing account and (ii) the Escrow Agent has no liability in the event of failure, whereupon Escrow Agent’s obligations hereunder shall terminateinsolvency, or inability of the depositary to pay the Cash Deposit or accrued interest upon demand for withdrawal.
Appears in 1 contract
Escrow Provisions. The any sums (including any interest earned thereon) which the parties agree shall be held in escrow (collectively “Escrow Funds”), shall be held by Escrow Agent, in trust and disposed of only in accordance with the following provisions:
(a) Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent xxxxxx agrees to hold, keep and deliver the Initial Depositadminister, and disburse the Additional Deposit Escrow Funds pursuant to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. The Escrow Funds shall, unless otherwise expressly set forth herein, be held at such banking institution until disbursed as provided herein, and all such disbursements shall be made to the appropriate payees directly from such banking institution. In the event any interest or other income shall be earned on such Escrow Funds, such interest or other income shall become a part of the Escrow Funds. Xxxxx’s and Xxxxxx’s Federal Identification Numbers are set forth below.
(b) At such time as Escrow Agent receives written notice from either Buyer or Seller, or both, setting forth the identity of the party to whom such Escrow Funds (or portions thereof) are to be disbursed and further setting forth the specific section or paragraph of the Agreement pursuant to which the disbursement of such Escrow Funds (or portions thereof) is being requested, Escrow Agent shall disburse such Escrow Funds pursuant to such notice; provided, however, that if such notice is given by either Buyer or Seller but not both, Escrow Agent shall (i) promptly notify the other party (either Buyer or Seller as the case may be) that Escrow Agent has received a request for disbursement, and (ii) withhold disbursement of such Escrow Funds for a period of ten (10) days after receipt of such notice of disbursement and if Escrow Agent receives written notice from either Buyer or Seller within said ten (10) day period which notice countermands the earlier notice of disbursement, then Escrow Agent shall withhold such disbursement until both Buyer and Seller can agree upon a disbursement of such Escrow Funds. Xxxxx and Seller hereby agree to send to the other, pursuant to Section 18, a duplicate copy of any written notice sent to Escrow Agent and requesting any such disbursement or countermanding a request for disbursement.
(c) In performing any of its duties hereunder, Escrow Agent shall not be entitled incur any liability to anyone for any damages, losses, or expenses, except for willful default, gross negligence or breach of trust, and it shall accordingly not incur any such liability with respect to (i) any action taken or omitted in good faith upon advice of its legal counsel given with respect to any fees questions relating to the duties and responsibilities of Escrow Agent under this Agreement, or compensation (ii) any action taken or omitted in reliance upon any instrument, including any written notice or instruction provided for in this Agreement, not only as to its services hereunder. due execution and the validity and effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be liable only genuine, to hold said sums have been signed or presented by a proper person or persons, and deliver the same to the parties named herein in accordance conform with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. .
(d) In the event of any disagreement a dispute between Buyer Xxxxx and Seller resulting sufficient, in any adverse claims and demands being made the sole discretion of Escrow Agent to justify its doing so or in connection with the event that Escrow Agent has not disbursed the Escrow Funds on or for before ten (10) days after the monies involved herein or affected herebyClosing Date, Escrow Agent shall refuse be entitled to comply with any such claims tender into the registry or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition custody of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending the Escrow Funds, together with such adjudication legal pleadings as it may deem appropriate, and thereupon be discharged from all further duties and liabilities under this Agreement. Any such legal action may be brought in a federal or state court in New York County, New York or, if such courts do not have jurisdiction as to submit such resolution of such dispute to the parties or matters involved, then such court by action of interpleader, whereupon as Escrow Agent’s Agent shall determine to have jurisdiction thereof.
(e) Escrow Agent has executed this Agreement in the place indicated on the signature page hereof to confirm its obligations hereunder shall terminateand agreements under this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (EnerSys)
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer stock certificates representing the Escrowed Shares, and agrees to hold such Escrowed Payment in escrow to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, delivered in accordance with the terms and provisions of this Escrow Agreement subject to the following:
4.1 The parties acknowledge that Escrow Agent is acting solely as an escrow agent and shall not, solely by reason of this Escrow Agreement, be responsible or liable in any manner whatsoever for the sufficiency, correctness or validity of any instrument or signature thereon deposited with or delivered to Escrow Agent, with respect to the form or execution of any such instrument thereof or the identity, authority or rights of any person executing, depositing or delivering the same. Escrow Agent may act in reliance on any instrument or signature believed to be genuine and may assume that any person purporting to give notice or receipt or make any statements of advice or instruction in connection with the provisions hereof has been duly authorized to do so.
4.2 Upon the final delivery of the entire Escrowed Payment by Escrow Agent or mutual agreement of the parties in accordance with the terms of this Escrow Agreement, Escrow Agent shall be discharged from all further obligations or responsibilities hereunder, except in the case of Escrow Agent's own bad faith or gross negligence.
4.3 Escrow Agent shall not be entitled bound by any waiver, amendment, supplement or modification of this Escrow Agreement which affects its duties hereunder, unless it shall have given its prior written consent thereto.
4.4 Nothing in this Escrow Agreement shall be deemed to impose a duty on Escrow Agent to take any fees action under this Escrow Agreement if it shall have been advised by counsel that such action is likely to result in liability to it, nor shall it be required to take any action that is contrary to the terms of this Escrow Agreement or compensation for its services hereunderis contrary to law. Any action to be taken by the Escrow Agent hereunder may be taken by it by or through any attorney at law who is a partner, associate, or employee of Escrow Agent.
4.5 Escrow Agent shall be liable only required to hold said sums and deliver the same institute or defend any action or legal process involving any matter referred to the parties named herein which in accordance with the provisions of this Agreement, any manner affects it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses its duties or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between liabilities as long as Buyer and Seller resulting in any adverse claims Shareholder meet the obligations of Sections 4.6 and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminate4.
Appears in 1 contract
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied (a) If same are delivered to the Purchase Price under Escrow Agent, the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. deposit the Deposit in an interest bearing escrow account in a federally insured institution.
(b) The Escrow Agent shall be liable only to hold said sums and deliver disburse the same to the parties named herein Deposit in accordance with the provisions of this Agreement.
(c) If this Agreement is terminated in accordance with the terms hereof, it being expressly understood that or if the Closing does not take place under this Agreement by acceptance reason of this Agreementthe failure of either party to comply with such party’s obligations hereunder, Escrow Agent is acting in then the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse pay the Deposit, as set forth in a written notice to comply with any such claims Escrow Agent from Seller or demands so long as such disagreement may continue. In so refusingPurchaser, provided however, that Escrow Agent shall make no delivery or other disposition of not disburse any portion of the monies then held by it under Deposit until Escrow Agent shall have provided ten (10) days’ prior notice to both Seller and Purchaser (which shall include a copy of the notice provide to the Escrow Agent) and not thereafter if either Seller or Purchaser shall have objected to such disbursement during such ten (10) day period.
(d) The Escrow Agent shall hold the Deposit in a separately designated interest bearing escrow account, with interest to accrue to the benefit of Purchaser, unless such Deposit pursuant to the terms of this AgreementAgreement is paid to Seller.
(e) The duties of the Escrow Agent are only as herein specifically provided and are purely ministerial in nature, and in so doing the Escrow Agent shall not become liable to anyone incur no liability whatsoever except for such refusal; and willful misconduct or gross negligence, as long as the Escrow Agent has acted in good faith.
(f) In the performance of its duties hereunder, the Escrow Agent shall refrain from acting until (a) the rights be entitled to rely upon any document, instrument or signature believed by it to be genuine and signed by either or both of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein parties or affected hereby, or their successors.
(bg) all differences shall have been adjusted by agreement between Seller and Buyer, and The Escrow Agent shall have may assume that any person purporting to give any notice of instructions in accordance with the provisions hereof has been notified in writing of such agreement signed by the parties hereto. duly authorized to do so.
(h) The Escrow Agent shall not be required to disburse bound by any modification, cancellation or rescission of the monies held by it under this Agreement unless in accordance with either a joint written instruction writing and signed by Seller and Purchaser, and if such modification, cancellation or rescission affects the obligations of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt Agent under this Paragraph 21, by Escrow Agent from either Buyer or .
(i) Seller and Purchaser shall each reimburse the Escrow Agent for one-half (the “Notifying Party”1/2) of any notice and all loss, liability, costs or request (expenses in connection herewith, including reasonable attorneys’ fees and disbursements, incurred without willful misconduct or gross negligence on the “Escrow Demand”) to perform any act or disburse any portion part of the monies held by Escrow Agent under arising out of or in connection with its acceptance of, or the terms performance of its duties and obligations under, this Agreement, as well as the reasonable costs and expenses of defending against any claim or liability arising out of or relating to this Agreement.
(j) The Escrow Agent has executed this Agreement solely to confirm that the Escrow Agent will hold the Deposit in escrow, pursuant to the provisions of this Agreement, Escrow Agent shall give written notice to .
(k) In the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in event that there is a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant relating to either clause (a) or (b) abovethe disposition of the Deposit, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave shall be entitled to deposit said monies interplea the Deposit into any the circuit court of competent jurisdiction pending Fairfax County, Virginia and deduct from the Deposit the costs incurred in connection with the filing of any such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminate.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Escrow Provisions. A. The parties hereby appoint Sxxxxxx Ortoli Vxxxxx-Xxxx Rxxxxxxxxx LLP as Escrow Agent hereby acknowledges receipt by under this Agreement and agree to pay the Escrow Agent a fee of US$2,500 for all services as Escrow Agent related to all subscriptions being made in this placement (“Escrow Agent’s Fee”). The Escrow Agent’s Fee shall be paid directly from the proceeds of the Initial Deposit paid by Buyer sale of the Notes. The parties hereby agree to be applied establish an escrow account with the Escrow Agent whereby the Escrow Agent shall, subject to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement, distribute the Funds received hereby.
B. The Escrow Agent shall release the funds upon delivery to the Lender of the Note and Warrants. If by March 31, 2011, there are still funds in Escrow, the Escrow Agent shall return the Funds to the Lenders from which they were received less any wire fees and such Lender’s pro-forma portion of the Escrow Fee. If the Escrow Agent receives any funds hereunder after the Initial Closing from a Lender, but does not receive a Note as set out hereunder to send to such Lender within two weeks of receipt of the funds, the Escrow Agent may return the funds to such Lender
C. The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be entitled to personally liable for any fees or compensation for its services hereunder. act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting in good faith and in the absence of gross negligence, fraud and willful misconduct, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s attorneys-at-law shall be liable only to hold said sums conclusive evidence of such good faith, in the absence of gross negligence, fraud and deliver willful misconduct.
D. The Escrow Agent’s responsibilities as Escrow Agent hereunder shall terminate if the same Escrow Agent resigns by giving written notice to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow AgentBorrower. In the event of any disagreement between Buyer such resignation, the parties shall appoint a successor Escrow Agent and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse deliver to comply with any such claims or demands so long as such disagreement may continue. In so refusing, successor Escrow Agent shall make no delivery or other disposition of any of the monies escrow funds then held by it the Escrow Agent hereunder.
E. The Company and the Purchaser hereby waive any conflict that may exist from the Escrow Agent representing the Company and from the Escrow Agent’s ability to pay itself from the Funds for amounts due under the terms this Agreement and outside of this Agreement, .
F. It is understood and in so doing agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the escrow funds held by the Escrow Agent shall not become liable hereunder, the Escrow Agent is authorized and directed in the Escrow Agent’s sole discretion (1) to retain in the Escrow Agent’s possession without liability to anyone for all or any part of said escrow funds until such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants disputes shall have been finally adjudicated in settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction of after the monies involved herein time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or affected herebydefend any such proceedings, or (b2) to deliver the escrow funds and any other property and documents held by the Escrow Agent hereunder to a state or Federal court having competent subject matter jurisdiction and located in the State of New York.
G. The parties hereto agree, jointly and severally, to indemnify and hold harmless the Escrow Agent and its partners, employees, agents and representatives from any and all differences claims, liabilities, costs or expenses in any way arising from or relating to the duties or performance of the Escrow Agent hereunder or the transactions contemplated hereby or by the Subscription Agreement other than any such claim, liability, cost or expense to the extent the same shall have been adjusted determined by agreement between Seller and Buyerfinal, and Escrow Agent shall have been notified in writing unappealable judgment of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution have resulted from the gross negligence, fraud or willful misconduct of such dispute to such court by action of interpleader, whereupon the Escrow Agent’s obligations hereunder shall terminate.
Appears in 1 contract
Escrow Provisions. 10.1 The parties acknowledge that Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdis acting solely as a stakeholder at their request and for their convenience, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. that Escrow Agent shall not be entitled liable in its capacity as escrow agent to either of the parties for any fees act or compensation for omission on its services hereunderpart unless taken or suffered in bad faith, in willful disregard of this Agreement or involving gross negligence. The Escrow Agent shall be liable responsible only to hold said sums and deliver for the same to safekeeping of the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only Deposit and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event resolution of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with questions of fact or for the monies involved herein or affected hereby, law.
10.2 The Escrow Agent shall refuse is authorized to comply with act upon any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held document believed by it under the terms of this Agreement, to be genuine and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement be signed by the parties heretoperson purported to have signed it and will incur no liability in so acting. The Escrow Agent shall not be required to disburse bound by any waiver, modification, amendment, termination or revision of the monies held by it under this Agreement unless delivered in accordance with either a joint writing to the Escrow Agent and, if the duties of the Escrow Agent are affected, unless it shall have given its prior written instruction of consent. The Escrow Agent may cease to serve at any time without incurring any liability hereunder.
10.3 In the event that the Escrow Agent designated herein is for any reason unable or unwilling to serve or to continue to serve as escrow agent, Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)appoint a new escrow agent. If for any reason Buyer fails to designate a new escrow agent within five (5) business days after notice by the giving of such notice, Escrow Agent does not receive any written objection to of its resignation, the Escrow Demand from the Notified Party, Escrow Agent shall comply with be free to resign and to pick a substitute escrow agent of its choice (in its sole discretion), provided that such new escrow agent shall be a title insurance company or agency authorized to do business in Arizona. The new escrow agent shall have all of the rights and perform all of the duties and obligations of the Escrow Demand. Agent as set forth in this Agreement, provided that no person shall serve as escrow agent unless he has executed a consent to abide by the terms of this Agreement.
10.4 If Buyer or Seller asserts any claim against the Escrow Agent does receive concerning the Deposit, then the party asserting such claim (and its respective principals) shall indemnify and hold harmless the Escrow Agent for its costs in connection therewith if the Escrow Agent successfully defends such claim.
10.5 Escrow Agent is executing Exhibit K to this Agreement to acknowledge receipt of the Deposit and Escrow Agent’s responsibilities hereunder, which may be modified only by a written objection from amendment signed by all of the Notified Party in a timely manner as aforesaid, parties. Any amendment to this Agreement that is not signed by Escrow Agent shall take no further action until the dispute between be effective as to the parties has been resolved pursuant thereto, but shall not be binding on Escrow Agent. Escrow Agent shall accept the Deposit with the understanding of the parties that Escrow Agent is not a party to this Agreement except to the extent of its specific responsibilities hereunder, and does not assume or have any liability of the performance or non-performance of Buyer or Seller hereunder to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminatethem.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cri Hotel Income Partners L P)
Escrow Provisions. The Deposit and any other sums (including without limitation, any interest earned thereon) which the parties agree shall be held in escrow (collectively “Escrow Funds”), shall be held by Escrow Agent, in trust and disposed of only in accordance with the following provisions:
(a) Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Depositadminister, and disburse the Additional Deposit Escrow Funds pursuant to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not invest such Escrow Funds in a segregated, interest-bearing money market account at national banking institution reasonably acceptable to Purchaser and Seller. In the event any interest or other income shall be earned on such Escrow Funds, such interest or other income become a part of the Escrow Funds and will be the property of the party entitled to any fees the Deposit pursuant to this Agreement.
(b) At such time as Escrow Agent receives written notice from either Purchaser or compensation for its services hereunder. Seller, or both, setting forth the identity of the party to whom such Escrow Funds (or portions thereof) are to be disbursed and further setting forth the specific section or paragraph of the Agreement pursuant to which the disbursement of such Escrow Funds (or portions thereof) is being requested, Escrow Agent shall be liable only disburse such Escrow Funds pursuant to hold such notice; provided, however, that if such notice is given by either Purchaser or Seller but not both, Escrow Agent shall (i) promptly notify the other party (either Purchaser or Seller as the case may be) that Escrow Agent has received a request for disbursement, and (ii) withhold disbursement of such Escrow Funds for a period of ten (10) days after receipt of such notice of disbursement and if Escrow Agent receives written notice from either Purchaser or Seller within said sums ten (10) day period which notice countermands the earlier notice of disbursement, then Escrow Agent shall withhold such disbursement until both Purchaser and deliver the same Seller can agree upon a disbursement of such Escrow Funds. Purchaser and Seller hereby agree to send to the parties named herein other, pursuant to Section 15.6, a duplicate copy of any written notice sent to Escrow Agent and requesting any such disbursement or countermanding a request for disbursement.
(c) In performing any of its duties hereunder, Escrow Agent shall not incur any liability to anyone for any damages, losses, or expenses, except for willful default or breach of trust, and it shall accordingly not incur any such liability with respect to (i) any action taken or omitted in accordance good faith upon advice of its legal counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent under this Agreement, or (ii) any action taken or omitted in reliance upon any instrument, including any written notice or instruction provided for in this Agreement, not only as to its due execution and the validity and effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by a proper person or persons, and to conform with the provisions of this Agreement.
(d) Notwithstanding the provisions of Section 14.1(b), in the event of a dispute between Purchaser and Seller sufficient, in the sole discretion of Escrow Agent to justify its doing so, or in the event that Escrow Agent has not disbursed the Escrow Funds on or before ten (10) days 724643206.7 17544974 after the Closing Date, Escrow Agent shall be entitled to tender into the registry or custody of any court of competent jurisdiction the Escrow Funds, together with such legal pleadings as it being expressly understood may deem appropriate, and thereupon be discharged from all further duties and liabilities under this Agreement. Any such legal action may be brought in a federal or state court in Xxxx County, Illinois, or, if is such courts do not have jurisdiction as to the parties or matters involved then such court as Escrow Agent shall determine to have jurisdiction thereof.
(e) Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that by acceptance the Escrow Agent has received the Deposit and shall hold the Escrow Funds in escrow, and shall disburse the Escrow Funds pursuant to the provisions of this AgreementArticle XIV.
(f) It is expressly agreed and understood between the parties hereto that in the event of controversy involving the disbursement of the escrow monies, Escrow Agent is acting authorized to institute interpleader proceedings in the capacity appropriate court of record for a depository only judicial determination as to the proper distribution of said money and that expenses including attorney fees incurred by Escrow Agent in such instance shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused borne by the gross negligence or willful malfeasance of escrowed funds and the contesting parties, at no expense to Escrow Agent. In the event of any disagreement between Buyer and Seller resulting controversy or litigation arising out of this transaction, which
(1) results in any adverse claims expense or attorney's fees to Escrow Agent, by virtue of such claim or default, controversy or litigation, or
(2) requires a declaratory judgment by a proper court as to the disbursement of said escrowed funds, then Escrow Agent is hereby authorized to deduct such expense or attorney's fees out of the escrowed funds, and demands being made to pay any remaining balance over to the party entitled thereto as agreed upon by the parties, or as directed by a court of competent jurisdiction. Seller and Purchaser hereby release and discharge Escrow Agent from all matters with respect to the subject matter hereof (except for gross negligence or intentional wrong doing) and agree to indemnify and hold Escrow Agent harmless from and against all costs, damages, judgments, attorney's fees, expenses, obligations, and liabilities of any kind or nature, which in good faith, Escrow Agent may incur or sustain in connection with or for this Escrow Agreement, and without limiting the monies involved herein or affected herebygenerality of the foregoing, Escrow Agent shall refuse not incur any liability due to comply a delay in the electronic wire transfer of funds or with respect to any such claims action taken or demands so long omitted in reliance upon any instrument, including any written notice or instructions provided for in the Contract or this Agreement, not only as such disagreement may continue. In so refusingto its due execution and the validity and effectiveness of its provisions, but also as to the truth and accuracy of any information contained therein, which the Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreementin good faith believe to be genuine, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in signed or presented by a court of competent jurisdiction of the monies involved herein proper person or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller persons and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance conform with the provisions hereinafter set forthof the Contract or this Agreement. Upon receipt by Seller and Purchaser hereby certify that they are aware the Federal Deposit Insurance Corporation (FDIC) coverages apply only to a maximum amount of $250,000.00 for each individual depositor. Seller and Purchaser understand that Escrow Agent assumes no responsibility for, nor 724643206.7 17544974 will Seller and Purchaser hold same liable for, any loss occurring which arises from either Buyer or Seller (the “Notifying Party”) fact that the amount of the above account may cause the aggregate amount of any notice or request (individual depositor's account to exceed $250,000.00 and that the “Escrow Demand”) to perform any act or disburse any portion of excess amount is not insured by the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminateFederal Deposit Insurance Corporation.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Carter Validus Mission Critical REIT, Inc.)
Escrow Provisions. Escrow Agent hereby acknowledges (a) Upon receipt by Escrow Agent of the Initial Deposit paid by Buyer Deposit, Escrow Agent shall cause the same to be applied deposited into an interest bearing account selected by Escrow Agent, it being agreed that Escrow Agent shall not be liable for any loss of such investment (unless due to the Purchase Price under the terms hereofEscrow Agent's gross negligence or willful misconduct) or any failure to attain a favorable rate of return on such investment. Escrow Agent agrees to hold, keep and shall deliver the Initial Deposit, and the Additional Deposit to Seller or to Purchaser, as the extent received case may be, under the following conditions:
(i) The Deposit shall be delivered to Sellers at the Closing upon receipt by Escrow Agent as provided of a statement executed by Sellers and Purchaser that the Deposit may be released; or
(ii) The Deposit shall be delivered to Sellers following receipt by Escrow Agent of written demand therefor from Sellers stating that Purchaser has defaulted in Section 1.04(a) hereofthe performance of its obligations under this Agreement, if Purchaser shall not have given written notice of objection in accordance with the provisions set forth below; or
(iii) The Deposit shall be delivered to Purchaser following receipt by Escrow Agent of written demand therefor from Purchaser stating that Sellers have defaulted in the performance of their obligations under this Agreement or that this Agreement was terminated under circumstances entitling Purchaser to the return of the Deposit, and specifying the Section of this Agreement which entitles Purchaser to the return of the Deposit or if Sellers shall not have given written notice of objection in accordance with the provisions set forth below; or
(iv) The Deposit shall be delivered to Purchaser or Sellers as directed by joint written instructions of each Seller and Purchaser; or
(v) The Deposit shall be delivered to Purchaser upon a termination of this Agreement by either Purchaser or Seller pursuant to the terms of Section 19; or
(vi) The Deposit shall be delivered to Purchaser following receipt by Escrow Agent of a Title Default Termination Notice; or (vii) The Deposit shall be delivered to Purchaser upon a termination of this Agreement by Purchaser pursuant to Section 14(d).
(b) Upon the filing of a written demand for the Deposit by Sellers or Purchaser, pursuant to Section 37(a)(ii), Section 37(a)(iii) or Section 37(a)(vi), Escrow Agent shall promptly give notice thereof (including a copy of such demand) to the other party. The other party shall have the right to object to the delivery of the Deposit, by giving written notice of such objection to Escrow Agent at any time within ten (10) days after such party's receipt of notice from Escrow Agent, but not thereafter. Such notice shall set forth the basis for objecting to the delivery of the Deposit. Upon receipt of such notice of objection, Escrow Agent shall promptly give a copy of such notice to the party who filed the written demand. If Escrow Agent shall have timely received such notice of objection, Escrow Agent shall continue to hold the Deposit until (i) Escrow Agent receives written notice from Sellers and Purchaser directing the disbursement of the Deposit, in which case Escrow Agent shall then disburse the Deposit in accordance with said direction, or (ii) litigation is commenced between Sellers and Purchaser, in which case Escrow Agent shall deposit the Deposit with the clerk of the court in which said litigation is pending, or (iii) Escrow Agent takes such affirmative steps as Escrow Agent may elect, at Escrow Agent's option, in order to terminate Escrow Agent's duties hereunder, including but not limited to depositing the Deposit in court and commencing an action for interpleader, the costs thereof to be borne by whichever of Sellers or Purchaser is the losing party.
(c) Escrow Agent may rely and act upon any instrument or other writing reasonably believed by Escrow Agent to be genuine and purporting to be signed and presented by any person or persons purporting to have authority to act on behalf of Sellers or Purchaser, as the case may be, and shall not be liable in connection with the performance of any duties imposed upon Escrow Agent by the provisions of this Agreement, except for Escrow Agent's own gross negligence, willful misconduct or default. Escrow Agent shall have no duties or responsibilities except those set forth herein. Escrow Agent shall not be entitled to bound by any fees modification, cancellation or compensation for its services hereunderrescission of this Agreement unless the same is in writing and signed by Purchaser and each Seller, and, if Escrow Agent's duties hereunder are affected, unless Escrow Agent shall have given prior written consent thereto. Escrow Agent shall be liable only reimbursed by Sellers and Purchaser for any expenses (including reasonable legal fees and disbursements of outside counsel), including all of Escrow Agent's fees and expenses with respect to hold said sums and deliver the same to the parties named herein any interpleader action incurred in accordance connection with the provisions of this Agreement, it being expressly understood that by acceptance and such liability shall be joint and several; provided that, as between Purchaser and Sellers, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible any such expenses paid to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event that Escrow Agent shall be uncertain as to Escrow Agent's duties or rights hereunder, or shall receive instructions from Purchaser or Seller that, in Escrow Agent's opinion, are in conflict with any of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected herebyprovisions hereof, Escrow Agent shall refuse be entitled to comply with hold and apply the Deposit and may decline to take any such claims or demands so long as such disagreement may continueother action. In so refusingAfter delivery of the Deposit in accordance herewith, Escrow Agent shall make have no delivery further liability or other disposition obligation of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until kind whatsoever.
(ad) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing the right at any time to resign upon ten (10) Business Days prior notice to Sellers and Purchaser. Sellers and Purchaser shall jointly select a successor Escrow Agent and shall notify Escrow Agent of the name and address of such agreement signed by the parties hereto. successor Escrow Agent shall within ten (10) Business Days after receipt of notice of Escrow Agent of its intent to resign. If Escrow Agent has not be required to disburse any received notice of the monies held by it under this Agreement unless in accordance with either a joint written instruction name and address of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by such successor Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreementwithin such period, Escrow Agent shall give written notice have the right to the other party (the “Notified Party”)select on behalf of Sellers and Purchaser a bank or trust company to act as successor Escrow Agent hereunder. If within five (5) business days At any time after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Partyten (10) Business Day period, Escrow Agent shall comply with have the Escrow Demand. If right to deliver the Deposit to any successor Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaidselected hereunder, provided such successor Escrow Agent shall take execute and deliver to Sellers and Purchaser an assumption agreement whereby it assumes all of Escrow Agent's obligations hereunder. Upon the delivery of all such amounts and such assumption agreement, the successor Escrow Agent shall become the Escrow Agent for all purposes hereunder and shall have all of the rights and obligations of the Escrow Agent hereunder, and the resigning Escrow Agent shall have no further action until the dispute between the parties has been resolved pursuant to either clause responsibilities or obligations hereunder.
(ae) or (b) above, The party receiving such interest shall pay any income taxes thereon; provided, however, in that, if Sellers receives the case interest on the Deposit as a credit against the Purchase Price to Purchaser, then Purchaser shall pay any income taxes on such interest received by Sellers. The taxpayer identification numbers of clause each Seller is set forth on Exhibit 37(e) hereto, and Purchaser's taxpayer identification number is 20-0273336.
(a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court f) The provisions of competent jurisdiction pending such adjudication and to submit such resolution this Section 37 shall survive the Xxxxxxx xr termination of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminatethis Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Tanger Properties LTD Partnership /Nc/)
Escrow Provisions. (Escrow Agent) acts herein only as the Escrow Agent hereby acknowledges receipt by for Producer and is not responsible for any act of commission or omission on the part or either PURCHASER or ARTIST. In furtherance thereof and for the benefit of (Escrow Agent), it is agreed that neither ARTIST or PURCHASER will name or join (Escrow Agent) as a party in any civil action or suit arising out of, in connection with, or related to any act(s) of commission or omission of PURCHASER or ARTIST and the PURCHASER and ARTIST jointly and severally agree to hold the (Escrow Agent) harmless from and against any and all expenses, costs, actions, claims, or liabilities (including reasonable attorney's fees) which may arise in connection with the Escrow Agent's performance of its duties hereunder, except for the willful misconduct or gross negligence of the Escrow Agent. The Escrow Agent may act or refrain from acting in respect of any matter arising in connection with the Initial Deposit paid by Buyer Escrow Fund, shall have no duties or obligations other than as stated herein and shall be protected in acting upon any notice, certificate, or other communication, not only as to the due execution and the validity and effectiveness of its provision, but also as to the truth and acceptability of any information therein contained, which it shall in good faith believe to be applied valid and to the Purchase Price under the terms hereofhave been signed or presented by a proper person or persons. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. The Escrow Agent shall not be entitled bound by any notice, or demand with respect thereto, or any waiver, modification, amendment, termination, or rescission of this contract unless in writing delivered to any fees or compensation for its services hereunder. the Escrow Agent, and if the duties of the Escrow Agent are affected, unless it shall have given its prior written consent thereto. If at any time there shall be liable only to hold said sums a controversy between PURCHASER and deliver the same ARTIST with respect to the parties named herein in accordance with Escrow Fund, the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in may upon notice to PURCHASER or ARTIST either (i) hold the capacity of Escrow Fund until otherwise directed by a depository only Showdate(s): 184648 written instrument signed by PURCHASER and shall not be liable ARTIST or responsible to anyone for any damagesby an order, losses decree or expenses unless same shall have been caused judgment by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction which, by lapse of the monies involved herein time or affected herebyotherwise, shall no longer be or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required subject to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller appeal or an undisputed Escrow Demand review or (as hereinafter definedii) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to deposit the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party Fund in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication the final determination of any dispute among the parties hereto. Upon delivery of the Escrow Fund in accordance herewith, the obligations of the Escrow Agent shall cease with respect thereto and it shall not be required to submit such resolution of such dispute perform any further acts whatsoever pursuant to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminatethis contract.
Appears in 1 contract
Samples: Performance Agreement
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof27. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. The Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent hold the Escrowed Funds in an interest bearing account, and interest earned on the Escrowed Funds shall be liable only to hold said sums and deliver the same paid to the parties named herein in accordance with DCR or Developer on a pro rata basis based on the provisions portion of this Agreementthe principal amount of the Escrowed Funds paid to such parties, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agentas applicable.
28. In the event of any disagreement between Buyer the Developer and Seller resulting in DCR with respect to the Work (or the cost thereof) or any adverse claims and demands being made other matter arising hereunder in connection with the Escrowed Funds, the parties agree to work together, each acting reasonably and in good faith, to resolve the same. If the parties resolve their dispute, they shall issue joint written instruction to the Escrow Agent, to the extent such dispute pertains to the escrowed funds or for otherwise affects the monies involved herein or affected hereby, service of the Escrow Agent shall refuse hereunder. If the Developer and DCR fail to comply with reach an agreement within thirty (30) days of notice of such disagreement, then any such claims party or demands so long as such disagreement may continue. In so refusing, the Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, is hereby authorized and in so doing Escrow Agent shall not become liable directed to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in file an interpleader action with a court of competent jurisdiction jurisdiction
29. Xxxxxxxxx agrees to indemnify the Escrow Agent and to hold the Escrow Agent harmless from and against any and all claims, damages, losses, liabilities, judgments and expenses (including, without limitation, all reasonable fees and expenses of counsel and all expenses of litigation or preparation therefor) that the Escrow Agent may incur or that may be asserted against the Escrow Agent in connection with the performance of the monies involved herein Escrow Agent's duties hereunder or affected herebyarising out of any investigation, litigation or proceeding involving this MOU (b) all differences shall have been adjusted by agreement between Seller and Buyerincluding compliance with or contesting of any subpoenas or other process issued against the Escrow Agent), and whether or not the Escrow Agent is a party thereto, other than claims, damages, losses, liabilities or judgments with respect to any matter as to which the Escrow Agent shall have been notified adjudicated not to have acted in good faith. Promptly upon receipt by the Escrow Agent of notice of the commencement of any action, the Escrow Agent shall, if a claim in respect thereof is to be made against any other party hereto hereunder, notify such party in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminatecommencement thereof.
Appears in 1 contract
Samples: Memorandum of Understanding
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, said Deposit and the Additional Deposit all other sums delivered to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, it pursuant hereto in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. hereunder Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Agreement Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall be entitled to refuse to comply with any such claims or demands so long as such disagreement may continue. In ; and in so refusing, refusing Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall be entitled to continue to refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forthhereinafter. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. Demand If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaidmanner, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), . Further Escrow Agent may bring an shall have the right at all times to pay all sums held by it (i) to the appropriate action party under the terns hereof, or proceeding for leave to deposit said monies (ii) into any court of competent jurisdiction pending such adjudication and to submit such resolution of such after a dispute to such court by action of interpleaderbetween or among the parties hereto has arisen, whereupon Escrow Agent’s obligations hereunder shall terminate. Seller and Buyer jointly and severally agree to indemnify and hold harmless said Escrow Agent from any and all costs, damages and expenses, including reasonable attorneys’ fees, that said Escrow Agent may incur in its compliance of and in good faith with the terms of this Agreement; provided, however, this indemnity shall not extend to any act of gross negligence or willful malfeasance on the part of the Escrow Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Berkshire Income Realty Inc)
Escrow Provisions. (a) The Escrow Agent hereby acknowledges receipt by Escrow Agent of shall hold the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdXxxxxxx Money, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by such Xxxxxxx Money is in the form of immediately available wired funds, in escrow in an interest-bearing bank account at First American Trust, FFB (the “Escrow Account”).
(b) The Escrow Agent as provided shall hold the Xxxxxxx Money in escrow in the Escrow Account until any termination of the transaction contemplated by this Agreement pursuant to Section 1.04(a) 7.3 hereof, the Closing or any other sooner termination of this Agreement and shall hold or apply such proceeds in accordance with the terms and provisions of this Agreementsubsection 14.5(b). The Sellers and the Buyer understand that no interest is earned on the Xxxxxxx Money during the time it takes to transfer into and out of the Escrow Account. At Closing, the Xxxxxxx Money shall be paid by the Escrow Agent to, or at the direction of, the Sellers. If the Closing does not occur as a result of a termination of this Agreement pursuant to Section 7.3, the Xxxxxxx Money, together with all interest earned thereon, shall be returned to Buyer. If the Closing does not be entitled to occur for any fees or compensation for its services hereunder. other reason and either party makes a written demand upon the Escrow Agent shall be liable only to hold said sums and deliver for payment of such amount, the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damagesshall, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall within 24 hours give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection within five three (53) business days Business Days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written 52 objection from within such three (3) Business Day period or if for any other reason the Notified Party Escrow Agent in a timely manner as aforesaidgood faith shall elect not to make such payment, the Escrow Agent shall take no further action continue to hold such amount until the dispute between otherwise directed by joint written instructions from the parties has been resolved pursuant to either clause (a) this Agreement or (b) above, provided, however, in the case a final judgment of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any a court of competent jurisdiction pending such adjudication and jurisdiction. However, the Escrow Agent shall have the right at any time to submit such resolution deposit the Xxxxxxx Money with the clerk of the court of Xxxx County, Illinois. The Escrow Agent shall give written notice of such dispute deposit to the Sellers and the Buyer. Upon such court by action deposit the Escrow Agent shall be relieved and discharged of interpleaderall further obligations and responsibilities hereunder.
(c) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, whereupon that the Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or omission on its part, other than for its gross negligence or willful misconduct. The Sellers and the Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including attorneys’ fees and disbursements, incurred in connection with the performance of the Escrow Agent’s obligations hereunder shall terminateduties hereunder.
(d) The Escrow Agent has acknowledged its agreement to these provisions by signing this Agreement in the place indicated following the signatures of the Sellers and the Buyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Duke Realty Limited Partnership/)
Escrow Provisions. (a) The Escrow Agent hereby acknowledges receipt by shall hold the Xxxxxxx Money in escrow in an interest-bearing bank account at Citibank, N.A. (the “Escrow Account”).
(b) The Escrow Agent shall hold the Xxxxxxx Money in escrow in the Escrow Account until the Closing or sooner termination of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep this Agreement and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, shall hold or apply such proceeds in accordance with the terms and provisions of this Agreementsubsection 14.4(b). Seller and Buyer understand that no interest is earned on the Xxxxxxx Money during the time it takes to transfer into and out of the Escrow Account. At the Closing, the Xxxxxxx Money shall be paid by the Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this AgreementSeller, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated confirmed in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between joint written direction from Seller and Buyer, . If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent shall have been notified in writing for payment of such agreement signed by amount, the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreementshall, Escrow Agent shall within 24 hours give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection within five (5) business days seven Business Days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such seven Business Day period or if for any other reason the Notified Party Escrow Agent in a timely manner as aforesaidgood faith shall elect not to make such payment, the Escrow Agent shall take no further action continue to hold such amount until the dispute between otherwise directed by joint written instructions from the parties has been resolved pursuant to either clause (a) this Agreement or (b) abovea final judgment of a court of competent jurisdiction. However, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave shall have the right at any time to deposit said monies into the Xxxxxxx Money with any court of competent jurisdiction pending in Xxxx County, Illinois, together with such adjudication and to submit such resolution legal pleadings as it may deem appropriate. The Escrow Agent shall give written notice of such dispute deposit to Seller and Buyer. Upon such court by action deposit the Escrow Agent shall be relieved and discharged of interpleaderall further obligations and responsibilities hereunder.
(c) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, whereupon that the Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or omission on its part, other than for its gross negligence or willful misconduct. Seller and Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including attorneys’ fees and disbursements, incurred in connection with the performance of the Escrow Agent’s obligations hereunder shall terminateduties hereunder.
(d) The Escrow Agent has acknowledged its agreement to these provisions by signing this Agreement in the place indicated following the signatures of Seller and Buyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
Escrow Provisions. (a) In the event Escrow Agent hereby acknowledges receipt by Escrow Agent of is required to invest the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdEscrowed Funds hereunder, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to held responsible for any fees loss of principal or compensation for its services hereunderinterest which may be incurred as a result of making such investment or redeeming such investment in accordance herewith. Purchaser and Seller authorize Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreementaccept, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with and obey any such claims writs, orders, judgments or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery decrees entered or other disposition of issued by any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyerwith jurisdiction, and Escrow Agent shall have been notified in writing not be liable to Purchaser or Seller or any other person by reason of such agreement signed by compliance, notwithstanding that such writ, order, judgment or decree be subsequently reversed, modified, annulled, set aside or vacated. If Escrow Agent is made a party defendant to any suit or proceedings regarding the parties hereto. escrow of the Escrowed Funds, Purchaser and Seller agree to pay Escrow Agent, upon written demand, all reasonable costs, attorney’s fees, and expenses incurred with respect to such suit or proceeding, except to the extent arising from Escrow Agent’s gross negligence, willful misconduct or breach of this Agreement.
(b) Escrow Agent shall not be required to disburse bound by any modification, cancellation or rescission of the monies held by it under this Agreement unless in accordance with either a joint written instruction writing and signed by Escrow Agent.
(c) Each of Buyer Purchaser and Seller Seller, jointly and severally, shall indemnify and hold harmless Escrow Agent from and against any and all losses, liabilities, damages, claims, expenses or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt costs actually incurred by Escrow Agent from either Buyer or Seller (the “Notifying Party”) in connection with its performance of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held its duties hereunder, other than those caused by Escrow Agent under the terms Agent’s own breach of this Agreement, Escrow Agent willful misconduct, bad faith or gross negligence.
(d) The direction or consent of any individual Seller as to any action taken on behalf of Seller under this Agreement shall give written notice be deemed to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection be binding as to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminateSeller collectively.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Hotels & Resorts, Inc)
Escrow Provisions. Escrow Agent 8.1 The Company and Investor hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by appoint Escrow Agent as provided escrow agent for the Notes being sold by the Noteholders to the Investor pursuant to the Omnibus Agreement, warrant certificates being delivered by the Noteholders for cancellation by the Company (the "Noteholder Warrants") in Section 1.04(aconnection with the sale to the Investor of the Notes, certificates for the Common Stock being issued to the Noteholders in connection with the sale of the Notes (the "Noteholder Stock Certificates") hereof, and the purchase price for the Notes (the "Notes Purchase Price") to be paid by the Investor in accordance with the terms and provisions conditions set forth in the Omnibus Agreement and herein, and the Escrow Agent hereby accepts such appointment.
8.2 Upon receipt of all of the Notes, Noteholder Warrants (or other instruments which the investor shall have given written notice to the Escrow Agent are acceptable to the Investor) and Noteholder Stock Certificates in connection with the sale of the Notes to the Investor, the Escrow Agent shall promptly deliver to each of the Noteholders, by check or wire transfer, the amount of the Notes Purchase Price to which such Noteholder shall be entitled as set forth in Exhibit G. In the event that the Company fails to deliver to the Escrow Agent prior to June 30, 2005 any one or more of the Notes, the Noteholder Warrants or the Noteholder Stock Certificates, upon receipt of written notice from the Investor, the Escrow Agent shall return the Notes Purchase Price to the Investor, the appropriate Notes and Noteholders Warrant to each Noteholder to the address set forth on Exhibit G and the Noteholders Stock to the transfer agent of the Company for cancellation. Alternatively, at the option of the Investor, the Investor may direct the Escrow Agent by written notice prior to June 30, 2005 to deliver to the Investor the appropriate Notes, to deliver to the Company for cancellation the appropriate Noteholder Warrants and to deliver to each Noteholder the appropriate Noteholder Stock Certificate and the appropriate portion of the Notes Purchase Price as set forth on Exhibit G in order to effectuate the sale to the Investor of some, but less than all of the Notes. In such event, the Escrow Agent shall return only the unpaid Notes Purchase Price to the Investor, the unsold Notes and uncancelled Noteholders Warrants to each Noteholder who has not sold his Note to the address set forth on Exhibit G for such Noteholder and the Noteholders Stock Certificates that were to be delivered to the Noteholders upon sale of their Notes to the transfer agent of the Company for cancellation.
8.3 Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. Escrow Agent shall be under no liability to the other parties hereto, or to anyone else, by reason of any failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person, to perform such person's obligations under any such document. Except for amendments to this Agreement. Agreement relating to escrowed funds or documents or instruments, the Escrow Agent shall not be entitled obligated to recognize any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums agreement between any and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any all of the monies then held by persons referred to herein, notwithstanding that references hereto may be made herein and whether or not it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. has knowledge thereof.
8.4 Escrow Agent shall not be required liable to disburse any party or anyone else for any action taken, or omitted to be taken by it, or any action suffered by it to be taken or omitted, in good faith and acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent) statement, instrument, report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any of the monies held terms thereof, unless evidenced by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with writing delivered to the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer signed by the proper party or Seller (parties and, if the “Notifying Party”) of any notice duties or request (the “Escrow Demand”) to perform any act or disburse any portion rights of the monies held by Escrow Agent under the terms of this Agreementare affected, unless it shall give its prior written consent thereto.
8.5 Escrow Agent shall give not be responsible for the sufficiency or accuracy of the form, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein; nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights, of the person executing or delivering or purporting to execute or deliver any document or property or this Agreement. The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent to the Company, the Investor or the Noteholders pursuant to the provisions hereof.
8.6 Escrow Agent shall have the right to assume, in the absence of written notice to the contrary from the proper person or persons, that a fact or an event, by reason of which an action would or might be taken by the Escrow Agent, does not exist or has not occurred, without incurring liability to the other party (parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to betaken or omitted, in good faith and in the “Notified Party”). If within five (5) business days after the giving exercise of its own best judgment, in reliance upon such notice, assumption.
8.7 Escrow Agent does not receive any written objection to will be indemnified and held harmless by the Investor and the Company from and against all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Demand from Agent in connection with any action, suit or proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Agreement, the Notified Party, services of the Escrow Agent shall comply with the Escrow Demand. If hereunder, except for claims relating to willful misconduct or gross negligence by Escrow Agent or breach of this Agreement by Escrow Agent, or the monies or other property held by it hereunder. EXHIBIT E FORM OF PROMISSORY NOTE AND SECURITY AGREEMENT ASSIGNMENT PROMISSORY NOTE AND SECURITY AGREEMENT ASSIGNMENT For Value Received, each of the undersigned (each an "Assignor" and collectively the "Assignors") does receive written objection from hereby sell, assign, transfer and convey unto Stellar McKim LLC, a Delaware limited liability company (hereinafter called the Notified Party in a timely manner as aforesaid"Xxxignee"),its successors and assigns all right, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant title and interest of Assignor to either clause (a) or (b) aboveand under that certain Series I Convertible Secured Promissory Note, provideddated July 26, however2001, in the case original principal amount listed opposite the name of clause the Assignor on Schedule A attached hereto (aeach a "Note"), Escrow Agent may bring an appropriate action or proceeding for leave made by BrightStar Information Technology Services, Inc. ("Maker") and payable to deposit said monies into the order of Assignor (the original copy of which is being delivered to Assignee herewith). Each Assignor further does hereby assign, transfer and convey to Assignee all of the Assignor's rights under that certain Security Agreement dated July 26, 2001 by Maker, BrightStar Information Technology Group, Inc. ("Brightstar"), Software Innovators, Inc. ("SII"), Software Consulting Services America, Inc. ("SCSAI") and Brian R. Blackmarr & Associates, Inc. ("Blackmarr") in favor of Assignoxx (xxx "Xxxxxxxx Agreement"). By xxxxxxxxx this Assignment, each of Maker, Brightstar, SII, and SCSAI (Blackmarr was liquidated in 2002 and is no longer in existence) hereby xxxxxxxx to the assignment of the Notes and the Assignors' rights under the Security Agreement, agrees to make any court of competent jurisdiction pending such adjudication and all future payments on the Notes to submit such resolution of such dispute to such court by action of interpleaderthe Assignee, whereupon Escrow Agent’s obligations hereunder its successors and assigns and agrees that Assignee shall terminatebe treated as the Secured Party under the Security Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Brightstar Information Technology Group Inc)
Escrow Provisions. (a) Within three (3) days following the full execution of this Agreement, Seller and Buyer shall open Escrow Agent hereby acknowledges receipt (the "ESCROW") by delivering a fully executed copy of this Agreement to Chicago Title Company (referred to herein as "ESCROW HOLDER"), at 000 "X" Xxxxxx, Xxx Xxxxx, XX 00000, Attn: Xxxxxx Xxxx, Escrow Agent Officer. The "OPENING OF ESCROW" shall be deemed the date that this Agreement has been signed by the parties and delivered to Escrow Holder. Each party shall execute Escrow instructions on the standard form of Escrow Holder; provided, however, such additional instructions shall not modify the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent This Agreement shall be liable only attached to hold said sums and deliver made an exhibit to such Escrow instructions. To the same to the parties named herein in accordance extent that such Escrow instructions conflict with any of the provisions of this Agreement, it being expressly understood this Agreement shall control. If any requirements relating to the duties or obligations of the Escrow Holder hereunder are not acceptable to the Escrow Holder, or if the Escrow Holder requires additional instructions, the parties agree to make such deletions, substitutions and additions to the Escrow Instructions as counsel for Buyer and Seller shall mutually approve and which do not materially change this Agreement or its intent
(b) Buyer and Seller agree that, except as provided in subparagraph (i) below, the sale of the Property shall occur at two (2) closings, to be known as "First Closing" and the "Second Closing". At the First Closing, Seller shall convey to Buyer all of its interest in Parcel A. At the Second Closing, Seller shall convey to Buyer all of its interest in Parcel B. Although the First Closing may be delayed by Buyer in accordance with Section 27 below, the First Closing shall be scheduled to occur on January 31, 2003 and the actual closing shall be referred to as the "FIRST CLOSE OF ESCROW". The Second Closing shall be scheduled to occur on December 15, 2003; however, Seller may, in its sole discretion, postpone the Second Closing to not later than January 15, 2004 upon written notice to Buyer and the actual closing shall be referred to herein as the "SECOND CLOSE OF ESCROW". On or before thirty (30) days prior to the First Close of Escrow, if the design of Buyer's improvements to the Property results in the need to construct such improvements over or in proximity to the lot line between Parcel A and Parcel B (and that by acceptance the City will not recognize the Ground Lease as affording Buyer the right to construct its improvements over or in proximity to such lot line), Buyer may elect to acquire an undivided two-thirds (2/3) interest in the Property in lieu of Parcel A. In the event Buyer so elects, this Agreement shall be modified as follows: All references to Parcel A herein shall be modified to refer to such undivided two-thirds (2/3) interest, and all references to Parcel B herein shall be modified to refer to the remaining undivided one-third (1/3) interest in the Property; and in such event, there shall be no requirement for the execution and delivery of the Ground Lease; and in lieu thereof the parties shall enter into a co-tenancy agreement with similar terms and conditions to those contained in the Ground Lease; provided, however, that the Ground Lease shall be modified as necessary to comply with those regulations and rulings applicable to Section 1031 of the Internal Revenue Code of 1986, as amended (the "CODE"), and corresponding provisions of applicable state tax legislation, in order that the Buyer's co-tenancy interest will be considered a real estate interest rather than a partnership interest for the purpose of Buyer acquiring the Property as part of a so-called like like-kind exchange under Section 1031 (a "SECTION 1031 EXCHANGE")of the Code.
(c) At the First Close of Escrow, Seller shall execute and deliver to Buyer through Escrow a Grant Deed conveying to Buyer fee simple title to Parcel A. At the First Close of Escrow, Buyer and Seller shall execute and deliver to Escrow Holder a Ground Lease over Parcel B, in the form attached hereto as Exhibit "H" (the "GROUND LEASE"). The purpose of the Ground Lease is to provide Buyer with an interest in Parcel B sufficient to obtain construction permits for the development thereof, and all rent payable pursuant thereto shall be credited against the Parcel B Purchase Price at the Second Close of Escrow. At the Second Close of Escrow, Seller shall execute and deliver to Buyer through Escrow a Grant Deed conveying to Buyer fee simple title to Parcel B. The Grant Deeds shall be in Title Company's standard form.
(d) On or before the First Close of Escrow, Buyer shall deliver to Seller outside of escrow an original irrevocable standby letter of credit ("LETTER OF CREDIT") in the amount of the Parcel B Purchase Price ("LETTER OF CREDIT AMOUNT"). In the event Buyer defaults under this Agreement and fails to complete its purchase of Parcel B, Seller shall have the right to draw upon the Letter of Credit in the Letter of Credit Amount; such draw shall constitute payment to Seller of the Parcel B Purchase Price. In the event Seller draws upon the Letter of Credit, Buyer, Seller and Escrow Holder shall perform all of their obligations under this Agreement, except for Buyer's deposit of the balance of the Parcel B Purchase Price. Upon confirmation from Escrow Agent is acting Holder that the Parcel B Purchase Price has been received into Escrow, and prior to the distribution of such funds to Seller, Seller shall deliver the Letter of Credit to Escrow Holder, who shall release the Letter of Credit to Buyer contemporaneously with delivery of the Parcel B Purchase Price amount to Seller. Buyer's failure to deliver the Letter of Credit to Seller as required above shall be deemed to be a breach of this Agreement which shall entitle Seller to terminate this Agreement, in the capacity of a depository only and shall not be liable addition to any other remedies available at law or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agentin equity. In the event of such breach, Seller may retain Buyer's Deposit as liquidated damages, as provided in paragraph 11 below. The Letter of Credit shall be issued by Bank of America, Xxxxx Fargo Bank or another major U.S. commercial bank acceptable to Seller, having a Los Angeles, California office at which the Letter of Credit may be drawn. The Letter of Credit shall have an expiration date no earlier than February 15, 2004. The Letter of Credit shall provide for payment to Seller upon the issuer's receipt of a sight draft from Seller together with Seller's certificate certifying that the Letter of Credit amount is due and payable from Buyer, and with no other conditions, and otherwise be in form and content satisfactory to Seller's attorneys.
(e) In consideration of Buyer's delivery of the Letter of Credit, Seller shall cause to be recorded against Parcel B at the First Close of Escrow, a deed of trust granted by Seller to Escrow Holder, as trustee, in favor of Buyer as beneficiary, in the form attached hereto as Exhibit "I" (the "DEED OF TRUST"), securing Seller's obligation to convey to Buyer fee simple title to Parcel B upon any disagreement between draw under the Letter of Credit constituting payment in full to Seller of the Parcel B Purchase Price. Prior to the First Close of Escrow, Buyer shall execute and deliver to Escrow Holder a request for reconveyance, in Escrow Holder's standard form, requesting the reconveyance of Parcel B from the lien of the Deed of Trust in the event Buyer defaults under this Agreement prior to the Second Close of Escrow and Seller resulting elects to terminate this Agreement without drawing upon the Letter of Credit. Escrow Holder shall hold such request for reconveyance of the Deed of Trust unless and until Buyer defaults under this Agreement and Seller releases the Letter of Credit to Buyer in any adverse claims accordance with subparagraph 5(d) above. If Buyer defaults under this Agreement and demands being made Seller releases the Letter of Credit to Buyer in connection accordance with or subparagraph 5(d), Escrow Holder shall promptly cause the reconveyance of the lien of the Deed of Trust as an encumbrance on Seller's title to Parcel B. Buyer shall be solely responsible for the monies involved herein or affected herebycosts associated with the reconveyance of the Deed of Trust pursuant to this subparagraph 5(e).
(f) At the First Close of Escrow, Escrow Agent Holder shall refuse (i) cause the Grant Deed for Parcel A to comply with be recorded in San Diego County; (ii) deliver to Seller the Parcel A Purchase Price, plus or minus Seller's share of any such claims expenses or demands so long as such disagreement may continueprorations; (iii) cause the Memorandum of Option to Purchase (in the form of Exhibit "E" hereto), Memorandum of Right of First Refusal (in the form of Exhibit "F" hereto) Ground Lease, (in the form of Exhibit "H" hereto), the Deed of Trust (in the form of Exhibit "I" hereto), and the Memorandum of Agreement (in the form of Exhibit "D" hereto) to be recorded in San Diego County. In so refusingAt the Second Close of Escrow, Escrow Agent Holder shall make no delivery (i) cause the Grant Deed for Parcel B to be recorded in San Diego County; (ii) deliver to Seller the Parcel B Purchase Price, plus or other disposition minus Seller's share of any expenses or prorations.
(g) Expenses and costs concerning the Escrow shall be borne as follows:
(i) Seller shall pay the portion of the monies then held Title Policy premiums for each policy applicable to a standard CLTA policy, any documentary transfer taxes, the recording fees for the Grant Deeds and the other documents to be recorded pursuant to paragraph 5(f) above and one-half (1/2) of the Escrow fees;
(ii) Buyer shall pay the Title Policy premiums for each policy in excess of Seller's share described in clause (i) above, including the cost of any ALTA inspection, the cost of any title endorsements requested by Buyer in its sole discretion and one-half (1/2) of the Escrow fees;
(iii) At the First Close of Escrow, Buyer shall reimburse Seller for the cost of the Survey referred to in paragraph 3(a)(ii) above (it being agreed that the cost shall be limited to the cost of updating Seller's existing survey of the Property);
(iv) Seller and Buyer shall each bear their respective legal and accounting fees and costs (if any); and
(v) All other fees and charges shall be shared by the parties according to the usual custom in San Diego County.
(h) Prior to each Close of Escrow, Seller shall provide Escrow Holder and Buyer with the certification required by Internal Revenue Code Section 1445 (the "NON-FOREIGN PERSON CERTIFICATE"), and the certification required to show that withholding is not required pursuant to California Revenue and Taxation Code Sections 18662(e) and 26131(e). If Seller shall fail to deposit into Escrow the Non-Foreign Person Certificate as required by this Agreement, Buyer may at its option either (i) delay Close of Escrow until such time as Seller has complied with the conditions set forth herein, and such adjournment shall not place Buyer in default of its obligations hereunder, or (ii) withhold from the Purchase Price and remit to the Internal Revenue Service, a sum equal to ten percent (10%) of the gross selling price of the Property or such other sum as shall be required in accordance with the withholding obligations imposed upon Buyer pursuant to Section 1445 of the Code. Such withholding shall not place Buyer in default under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required entitled to disburse claim that such withholding shall excuse Seller's performance under this Agreement.
(i) Real property taxes, any installments of bonds and any special taxes and assessments affecting the entire Property shall be prorated as of the monies held by it under First Closing Date based on the actual number of days in the month and year. Any reconciliation of estimated closing adjustments, or corrections of errors in the calculation of closing adjustments, shall be made as soon as practicable after each Close of Escrow and the provisions of this Section shall survive the last Close of Escrow.
(i) Notwithstanding any other provision of this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (contrary, Seller shall have the “Notified Party”)right, in its sole discretion, to convey the entire Property to Buyer at the First Closing, provided that all conditions to closing have been satisfied. If within five Seller so elects to convey the entire Property to Buyer at the First Closing: (5i) business days after the giving Ground Lease described in subparagraph (c) and the Letter of such notice, Credit described in subparagraph (d) above shall not be required; (ii) Buyer shall deposit into Escrow Agent does not receive any written objection the entire Purchase Price for the Property prior to the Escrow Demand from First Closing; and (iii) all other conditions applicable to the Notified Party, Escrow Agent Second Closing shall comply with be satisfied at the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminateFirst Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Neurocrine Biosciences Inc)
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent shall deliver the Deposit to Seller or Buyer promptly after receiving a joint written notice from Seller and Buyer directing the disbursement of the Initial Deposit paid by Buyer same, such disbursement to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, made in accordance with such direction. If Escrow Agent receives written notice from Buyer or Seller that the terms and provisions of this Agreement. party giving such notice is entitled to the Deposit, which notice shall describe with reasonable specificity the reasons for such entitlement, then Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (ai) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall promptly give written notice to the other party of Escrow Agent’s receipt of such notice and enclosing a copy of such notice and (ii) subject to the “Notified Party”). If within five provisions of the following paragraph which shall apply if a conflict arises, on the fourteenth (514th) business days day after the giving of such noticethe notice referred to in clause (i) above, Escrow Agent does not receive any written objection deliver the Deposit to the Escrow Demand from party claiming the Notified Partyright to receive it; provided further that if Buyer requests a refund of the Initial Deposit on or prior to the expiration of the Due Diligence Period (whether or not such request is also executed by Seller), Escrow Agent shall comply promptly disburse the Deposit to Buyer in accordance with that request. Buyer and Seller hereby agree to send to the Escrow Demand. If other, a duplicate copy of any written notice sent to Escrow Agent does receive written objection from and requesting any such disbursement or countermanding a request for disbursement In the Notified Party in a timely manner as aforesaid, event that Escrow Agent shall be uncertain as to its duties or actions hereunder or shall receive instructions or a notice from the Buyer or Seller which are in conflict with instructions or a notice from the other party or which, in the reasonable opinion of Escrow Agent, are in conflict with any of the provisions of this Contract, it shall be entitled to take no any of the following courses of action:
(i) Hold the Deposit as provided in this Contract and decline to take any further action until Escrow Agent receives a joint written direction from the dispute Buyer and Seller or any order of a court of competent jurisdiction directing the disbursement of the Deposit, in which case Escrow Agent shall then disburse the Deposit in accordance with such direction;
(ii) In the event of litigation between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a)Buyer and Seller, Escrow Agent may bring an appropriate action or proceeding for leave deliver the Deposit to deposit said monies into the clerk of any court in which such litigation is pending; or
(iii) Escrow Agent may deliver the Deposit to a court of competent jurisdiction pending such adjudication and therein commence an action for interpleader, the cost thereof to Escrow Agent to be borne by whichever of the Buyer or Seller does not prevail in the litigation.
A. Escrow Agent shall not be liable for any action taken or omitted in good faith and believed by it to be authorized or within the rights or powers conferred upon it by this Contract and it may rely, and shall be protected in acting or refraining from acting in reliance upon an opinion of counsel and upon any directions, instructions, notice, certificate, instrument, request, paper or other documents believed by it to be genuine and to submit such resolution have been made, sent, signed or presented by the proper party or parties. Escrow Agent shall be under no obligation to take any legal action in connection with the Deposit or this Contract or to appear in, prosecute or defend any action or legal proceedings which would or might, in its reasonable opinion, involve it in cost, expense, loss or liability unless, in advance, and as often as reasonably required by it. Notwithstanding any other provision of such dispute to such court this Contract, the Buyer and Seller jointly indemnify and hold harmless Escrow Agent against any loss, liability or expense incurred without bad faith or negligence on its part and arising out of or in connection with its services under the terms of this Contract, including the cost and expense of defending itself against any claim of liability other than arising out of its bad faith or negligence.
B. Escrow Agent shall not be bound by action any modification of interpleader, whereupon this Contract affecting Escrow Agent’s obligations duties hereunder unless the same is in writing and signed by the Buyer, Seller and Escrow Agent. From time to time on or after the date of this Contract, the Buyer and Seller shall terminatedeliver or cause to be delivered to Escrow Agent such further documents and instruments that fall due, or cause to be done such further acts as Escrow Agent may reasonably request (it being understood that the Escrow Agent shall have no obligation to make any such request) to carry out more effectively the provisions and purposes of this Contract, to evidence compliance with this Contract or to assure itself that it is protected in acting hereunder.
C. Escrow Agent shall serve hereunder without fee for its services as escrow agent, but shall be entitled to reimbursement for its reasonable actual expenses incurred hereunder, which expenses shall be paid and borne equally by the Buyer and Seller. Escrow Agent agrees that it will not seek reimbursement for the services of its employees or partners, but only for its actual and reasonably incurred out-of-pocket expenses.
D. Escrow Agent agrees not to resign unless a substitute Escrow Agent is appointed by the Buyer and Seller and any letters of credit constituting the Deposit are reissued in the name of the substitute Escrow Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
Escrow Provisions. (a) In the event Escrow Agent hereby acknowledges receipt by Escrow Agent of is required to invest the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdEscrowed Funds hereunder, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to held responsible for any fees loss of principal or compensation for its services hereunderinterest which may be incurred as a result of making such investment or redeeming such investment in accordance herewith. Purchaser and Seller authorize Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreementaccept, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with and obey any such claims writs, orders, judgments or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery decrees entered or other disposition of issued by any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyerwith jurisdiction, and Escrow Agent shall have been notified in writing not be liable to Purchaser or Seller or any other person by reason of such agreement signed by compliance, notwithstanding that such writ, order, judgment or decree be subsequently reversed, modified, annulled, set aside or vacated. If Escrow Agent is made a party defendant to any suit or proceedings regarding the parties hereto. escrow of the Escrowed Funds, Purchaser and Seller agree to pay Escrow Agent, upon written demand, all reasonable costs, attorney’s fees, and expenses incurred with respect to such suit or proceeding, except to the extent arising from Escrow Agent’s gross negligence, willful misconduct or breach of this Agreement.
(b) Escrow Agent shall not be required to disburse bound by any modification, cancellation or rescission of the monies held by it under this Agreement unless in accordance with either a joint written instruction writing and signed by Escrow Agent.
(c) Each of Buyer Purchaser and Seller Seller, jointly and severally, shall indemnify and hold harmless Escrow Agent from and against any and all losses, liabilities, damages, claims, expenses or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt costs actually incurred by Escrow Agent from either Buyer or Seller (the “Notifying Party”) in connection with its performance of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held its duties hereunder, other than those caused by Escrow Agent under the terms Agent’s own breach of this Agreement, Escrow Agent willful misconduct, bad faith or gross negligence.
(d) The direction or consent of any individual Seller as to any action taken on behalf of Seller under this Agreement shall give written notice be deemed to the other party (the “Notified Party”)be binding as to Seller collectively. If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminate.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Escrow Provisions. (a) The Escrow Agent hereby acknowledges receipt by shall hold the Earnest Money in escrow in xx xxxerest-bearing bank account at Morgan Guaranty Trust Compxxx xx New York (the "Escrow Account").
(b) The Escrow Agent shall hold the Earnest Money in escrow in xxx Xxcrow Account until the Closing or sooner termination of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep all or a portion of this Agreement and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, shall hold or apply such proceeds in accordance with the terms and provisions of this Agreementparagraph (b). Escrow Agent shall not be entitled The Seller and the Buyer understand that no interest is earned on the Earnest Money during the txxx xx takes to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums transfer into and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any out of the monies then held by it under Escrow Account. At the terms of this Agreementrelevant Closing, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any relevant portion of the monies held by Earnest Money shall be paix xx xxe Escrow Agent under to, or at the terms of this Agreementdirection of, the Seller. If for any reason a Closing does not occur and either party makes a written demand upon the Escrow Agent shall for payment of such amount, the Escrow Agent shall, within 24 hours give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection within five (5) business days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such five day period or if for any other reason the Notified Party Escrow Agent in a timely manner as aforesaidgood faith shall elect not to make such payment, the Escrow Agent shall take no further action continue to hold such amount until the dispute between otherwise directed by joint written instructions from the parties has been resolved pursuant to either clause (a) this Agreement or (b) above, provided, however, in the case a final judgment of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any a court of competent jurisdiction pending such adjudication and jurisdiction. However, the Escrow Agent shall have the right at any time to submit such resolution deposit the Earnest Money with the clexx xx xhe court of New York County. The Escrow Agent shall give written notice of such dispute deposit to the Seller and the Buyer. Upon such court by action deposit the Escrow Agent shall be relieved and discharged of interpleaderall further obligations and responsibilities hereunder.
(c) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, whereupon that the Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or omission on its part, other than for its gross negligence or willful misconduct. The Seller and the Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including attorneys' fees and disbursements, incurred in connection with the performance of the Escrow Agent’s obligations hereunder shall terminate's duties hereunder.
(d) The Escrow Agent has acknowledged its agreement to these provisions by signing this Agreement in the place indicated following the signatures of the Seller and the Buyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (HRPT Properties Trust)
Escrow Provisions. The Deposit and any other sums (including without limitation, any interest earned thereon) which the parties agree shall be held in escrow (collectively “Escrow Funds”), shall be held by Escrow Agent, in trust and disposed of only in accordance with the following provisions:
(a) Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Depositadminister, and disburse the Additional Deposit Escrow Funds pursuant to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not invest such Escrow Funds in a segregated, interest-bearing money market account at [Purchaser to designate banking institution]. In the event any interest or other income shall be entitled earned on such Escrow Funds, such interest or other income become a part of the Escrow Funds and will be the property of Purchaser. Purchaser’s and Seller’s Federal Identification Numbers are set forth below.
(b) At such time as Escrow Agent receives written notice from either Purchaser or Seller, or both, setting forth the identity of the party to any fees whom such Escrow Funds (or compensation for its services hereunder. portions thereof) are to be disbursed and further setting forth the specific section or paragraph of the Agreement pursuant to which the disbursement of such Escrow Funds (or portions thereof) is being requested, Escrow Agent shall disburse such Escrow Funds pursuant to such notice; provided, however, that if such notice is given by either Purchaser or Seller but not both (except as to a notice of termination delivered to Purchaser under the provisions of Section 6.4 above, as to which notice of Purchaser only shall be liable only required for the release to hold Purchaser of the Deposit by Escrow Agent hereunder), Escrow Agent shall (i) promptly notify the other party (either Purchaser or Seller as the case may be) that Escrow Agent has received a request for disbursement, and (ii) withhold disbursement of such Escrow Funds for a period of ten (10) days after receipt of such notice of disbursement and if Escrow Agent receives written notice from either Purchaser or Seller within said sums ten (10) day period which notice countermands the earlier notice of disbursement, then Escrow Agent shall withhold such disbursement until both Purchaser and deliver the same Seller can agree upon a disbursement of such Escrow Funds. Purchaser and Seller hereby agree to send to the parties named herein other, pursuant to Section 15.6 below, a duplicate copy of any written notice sent to Escrow Agent and requesting any such disbursement or countermanding a request for disbursement.
(c) In performing any of its duties hereunder, Escrow Agent shall not incur any liability to anyone for any damages, losses, or expenses, except for willful default or breach of trust, and it shall accordingly not incur any such liability with respect to (i) any action taken or omitted in accordance good faith upon advice of its legal counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent under this Agreement, or (ii) any action taken or omitted in reliance upon any instrument, including any written notice or instruction provided for in this Agreement, not only as to its due execution and the validity and effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by a proper person or persons, and to conform with the provisions of this Agreement.
(d) Notwithstanding the provisions of Section 14.1 (b) above (except as to a notice of termination delivered to Purchaser under the provisions of Section 6.4 above, it being expressly understood that as to which notice of Purchaser only shall be required for the release to Purchaser of the Deposit by acceptance of this Agreement, Escrow Agent is acting hereunder), in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement a dispute between Buyer Purchaser and Seller resulting sufficient, in any adverse claims and demands being made the sole discretion of Escrow Agent to justify its doing so or in connection with the event that Escrow Agent has not disbursed the Escrow Funds on or for before ten (10) days after the monies involved herein or affected herebyClosing Date, Escrow Agent shall refuse be entitled to comply with any such claims tender into the registry or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition custody of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending the Escrow Funds, together with such adjudication legal pleadings as it may deem appropriate, and thereupon be discharged from all further duties and liabilities under this Agreement. Any such legal action may be brought in a federal or state court in New York County, New York or, if is such courts do not have jurisdiction as to submit such resolution of such dispute to the parties or matters involved then such court by action as Escrow Agent shall determine to have jurisdiction thereof.
(e) Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Agent has received the Deposit and shall hold the Escrow Funds in escrow, and shall disburse the Escrow Funds pursuant to the provisions of interpleaderthis Article XIV. A copy of the fully executed Agreement shall be delivered to both parties hereto.
(f) Escrow Agent is hereby authorized to destroy or otherwise dispose of any and all documents, whereupon papers, instructions and other material concerning the Escrow at the expiration of six (6) years from the later of (i) the Closing, (ii) the final disbursement of any funds maintained in Escrow after the Closing, or (iii) the final release of the Deposit following the termination of this Agreement.
(g) The provisions of this Article XIV shall survive the Closing or earlier termination of this Agreement until Escrow Agent’s duties and obligations hereunder shall terminateare fully and finally discharged.
Appears in 1 contract
Samples: Office Lease (Salesforce Com Inc)
Escrow Provisions. The Deposit and any other sums (including without limitation, any interest earned thereon) which the parties agree shall be held in escrow (collectively “Escrow Funds”), shall be held by Escrow Agent, in trust and disposed of only in accordance with the following provisions:
(a) Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Depositadminister, and disburse the Additional Deposit Escrow Funds pursuant to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not invest such Escrow Funds in a segregated, interest-bearing money market account at JPMorgan Chase Bank. In the event any interest or other income shall be earned on such Escrow Funds, such interest or other income become a part of the Escrow Funds and will be the property of the party entitled to any fees the Deposit pursuant to this Agreement. Purchaser’s and Seller’s Federal Identification Numbers are set forth below.
(b) At such time as Escrow Agent receives written notice from either Purchaser or compensation for its services hereunder. Seller, or both, setting forth the identity of the party to whom such Escrow Funds (or portions thereof) are to be disbursed and further setting forth the specific section or paragraph of the Agreement pursuant to which the disbursement of such Escrow Funds (or portions thereof) is being requested, Escrow Agent shall be liable only disburse such Escrow Funds pursuant to hold such notice; provided, however, that if such notice is given by either Purchaser or Seller but not both, Escrow Agent shall (i) promptly notify the other party (either Purchaser or Seller as the case may be) that Escrow Agent has received a request for disbursement, and (ii) withhold disbursement of such Escrow Funds for a period of ten (10) days after receipt of such notice of disbursement and if Escrow Agent receives written notice from either Purchaser or Seller within said sums ten (10) day period which notice countermands the earlier notice of disbursement, then Escrow Agent shall withhold such disbursement until both Purchaser and deliver the same Seller can agree upon a disbursement of such Escrow Funds. Purchaser and Seller hereby agree to send to the parties named herein other, pursuant to Section 15.6 below, a duplicate copy of any written notice sent to Escrow Agent and requesting any such disbursement or countermanding a request for disbursement.
(c) In performing any of its duties hereunder, Escrow Agent shall not incur any liability to anyone for any damages, losses, or expenses, except for willful default or breach of trust, and it shall accordingly not incur any such liability with respect to (i) any action taken or omitted in accordance good faith upon advice of its legal counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent under this Agreement, or (ii) any action taken or omitted in reliance upon any instrument, including any written notice or instruction provided for in this Agreement, not only as to its due execution and the validity and effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by a proper person or persons, and to conform with the provisions of this Agreement.
(d) Notwithstanding the provisions of Section 14.1 (b), it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement a dispute between Buyer Purchaser and Seller resulting sufficient, in any adverse claims and demands being made the sole discretion of Escrow Agent to justify its doing so or in connection with the event that Escrow Agent has not disbursed the Escrow Funds on or for before ten (10) days after the monies involved herein or affected herebyClosing Date, Escrow Agent shall refuse be entitled to comply with any such claims tender into the registry or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition custody of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending the Escrow Funds, together with such adjudication legal pleadings as it may deem appropriate, and thereupon be discharged from all further duties and liabilities under this Agreement. Any such legal action may be brought in a federal or state court in Denver County, Colorado or, if is such courts do not have jurisdiction as to submit such resolution of such dispute to the parties or matters involved then such court by action as Escrow Agent shall determine to have jurisdiction thereof.
(e) Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Agent has received the Deposit and shall hold the Escrow Funds in escrow, and shall disburse the Escrow Funds pursuant to the provisions of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminatethis Article XIV.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Escrow Provisions. A. In order to secure ACE Hi’s obligations hereunder and to facilitate any payment in respect of Indemnifiable Losses hereunder, ACE Hi shall deposit with JX Xxxxxx Cxxxx (the “Escrow Agent”), in a segregated account (the “Escrow Account”), pursuant to an escrow agreement to be entered into as of the Closing Date, by and among ACE Hi, AREH and the Escrow Agent hereby acknowledges receipt and to be in the form attached hereto as Annex A (the “Escrow Agreement”), any and all amounts or payments received by ACE Hi pursuant to the Acquisition Agreement, which amounts shall be so deposited with the Escrow Agent from time to time immediately following the receipt of any such amounts by ACE Hi, including without limitation, the following amounts:
i. The ACE Closing Payment;
ii. Any and all amounts received by ACE Hi from the Deposit pursuant to Section 2.3(b) of the Initial Deposit paid by Buyer to be applied to the Acquisition Agreement;
iii. The Old Post Office Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit (but only to the extent not included in the ACE Closing Payment);
iv. Any and all amounts received by ACE Hi in respect of the ACE Purchase Price Adjustment, and
v. Any and all amounts received by ACE Hi from the GB Indemnification Escrow Amount. The foregoing amounts including any interest, dividends or other earnings accrued or earned thereon shall be collectively referred to herein as the “Escrow Amount”.
B. Amounts from the Escrow Amount shall remain on deposit in the Escrow Account until released from time to time as follows:
i. In the event ACE Hi is required to make a payment to Buyer (any such payment, a “Direct Payment Obligation”) under the Acquisition Agreement, ACE Hi (with the prior written consent of AREH, which shall not be unreasonably withheld or delayed) may provide a written instruction to the Escrow Agent as provided directing the Escrow Agent to release the amount of such Direct Payment Obligation from the Escrow Amount directly to Buyer in satisfaction of such Direct Payment Obligation by wire transfer of immediately available funds to the wire transfer instructions set forth in such written instruction to the Escrow Agent.
ii. In the event an AREH Party seeks payment from ACE Hi in respect of an Indemnifiable Loss pursuant to Section 1.04(a) hereof, in accordance with the terms and provisions 1 of this Agreement, AREH shall provide written notice to ACE Hi indicating that an AREH Party has become obligated to and has or will make a payment in respect of an Indemnifiable Loss, briefly setting forth the nature of the underlying claim and the amount of such Indemnifiable Loss (any such amount, the “Indemnification Amount”) and setting forth the wire transfer instructions (any such wire transfer instructions the “Applicable Wire Transfer Instructions”) to which the applicable payment is to be made (any such notice, a “Payment Notice”). Within three (3) business days following the receipt by ACE Hi of a Payment Notice, ACE Hi and AREH shall provide a joint written instruction to the Escrow Agent directing the Escrow Agent to release the Indemnification Amount from the Escrow Account (or in the event the remaining Escrow Amount is less than the Indemnification Amount, the entire remaining Escrow Amount) by wire transfer of immediately available funds to the Applicable Wire Transfer Instructions. In the event that ACE Hi does not execute such joint written instruction within such three (3) business day period, AREH shall have the right to provide a unilateral notice to the Escrow Agent directing such payment and the Escrow Agreement shall provide for the foregoing; provided, however, that in the event AREH does not provide such unilateral notice in good faith and is determined by a court of competent jurisdiction (by final and non-appealable order) to not be entitled to such payment, AREH shall reimburse ACE Hi for the portion of such payment to which AREH was so determined to not be entitled plus interest at a rate of 8% per annum accruing from the date such payment was made from the Escrow Amount.
iii. Upon the later of (x) the eighteen month anniversary of the Closing Date provided any fees and all outstanding obligations relating to any claims for which notice has then been given under Article 12 of the Acquisition Agreement has been then fully discharged and all obligations that could result in Losses to the AREH Parties under the terms of Article 12 of the Acquisition Agreement (other than as a result of breaches of post closing obligations not included in Article 12) for AREH Obligations have expired or compensation for its services hereunder. (y) the termination of the GB Indemnification Escrow Agreement and the satisfaction of the Holdback Condition, ACE Hi and AREH shall provide a joint written instruction to the Escrow Agent directing the Escrow Agent to release any Escrow Amounts remaining in the Escrow Account to ACE Hi by wire transfer of immediately available funds to an account designated by ACE Hi in writing to the Escrow Agent.
C. For the avoidance of doubt, ACE Hi’s obligations in respect of Indemnifiable Losses pursuant to this Agreement are not contingent upon any obligation of any AREH Party to first make payment or otherwise incur out-of-pocket Losses in respect of any Indemnifiable Losses. Rather, ACE Hi’s obligations in respect of Indemnifiable Losses pursuant to this Agreement shall accrue and ACE Hi shall be liable only obligated to hold said sums make the applicable payments to the AREH Parties and deliver the same may be released from the Escrow Amounts in respect thereof, upon written notice from AREH to ACE Hi stating that AREH has concluded that an AREH Obligation is required to be paid.
D. In the parties named herein event that the remaining Escrow Amount is insufficient to satisfy any of ACE Hi’s obligations in accordance with the provisions respect of Indemnifiable Losses pursuant to Section 1 of this Agreement, it being expressly understood that by acceptance AREH shall be entitled to proceed against any and all other assets of this Agreement, Escrow Agent is acting in the capacity of a depository only ACE Hi and shall not be liable or responsible to anyone for exercise any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. and all other rights available under applicable law.
E. In the event of any disagreement conflict between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement and the Escrow Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent Agreement shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminategovern.
Appears in 1 contract
Samples: Indemnification Agreement (Atlantic Coast Entertainment Holdings Inc)
Escrow Provisions. By executing the Receipt as provided herein, Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to on the Purchase Price of the Property under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, said Deposit and the Additional Deposit all other sums delivered to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, it pursuant hereto in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services in holding the Deposit hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Agreement Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall be entitled to refuse to comply with any such claims or demands so long as such disagreement may continue. In ; and in so refusing, refusing Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall be entitled to continue to refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forthhereinafter. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaidmanner, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), . Further Escrow Agent may bring an shall have the right at all times to pay all sums held by it (i) to the appropriate action party under the terms hereof, or proceeding for leave to deposit said monies (ii) into any court of competent jurisdiction pending such adjudication and to submit such resolution of such after a dispute to such court by action of interpleaderbetween or among the parties hereto has arisen, whereupon Escrow Agent’s obligations hereunder shall terminate. Notwithstanding the foregoing to the contrary, in the event Buyer timely exercises Buyer’s right to terminate this Agreement pursuant to Section 6.02 hereof prior to the expiration of the Inspection Period and Buyer delivers an Escrow Demand together with a copy of Buyer’s termination notice pursuant to Section 6.02 prior to the expiration of the Inspection Period, Escrow Agent shall give written notice thereof to Seller, disburse the Deposit to Buyer and Seller shall not have any right to object thereto. Seller and Buyer jointly and severally agree to indemnify and hold harmless said Escrow Agent from any and all costs, damages and expenses, including reasonable attorneys’ fees, that said Escrow Agent may incur in its compliance of and in good faith with the terms of this Agreement; provided, however, this indemnity shall not extend to any act of gross negligence or willful malfeasance on the part of the Escrow Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Berkshire Income Realty Inc)
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to on the Purchase Price of the Property under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, said Deposit and the Additional Deposit all other sums delivered to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, it pursuant hereto in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall be entitled to refuse to comply with any such claims or demands so long as such disagreement may continue. In ; and in so refusing, refusing Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall be entitled to continue to refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forthhereinafter. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaidmanner, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), . Further Escrow Agent may bring an shall have the right at all times to pay all sums held by it (i) to the appropriate action party under the terms hereof, or proceeding for leave to deposit said monies (ii) into any court of competent jurisdiction pending such adjudication and to submit such resolution of such after a dispute to such court by action of interpleaderbetween or among the parties hereto has arisen, whereupon Escrow Agent’s obligations hereunder shall terminate. Seller and Buyer jointly and severally agree to indemnify and hold harmless said Escrow Agent from any and all costs, damages and expenses, including reasonable attorneys’ fees, that said Escrow Agent may incur in its compliance of and in good faith with the terms of this agreement; provided, however, this indemnity shall not extend to any act of gross negligence or willful malfeasance on the part of the Escrow Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Berkshire Income Realty Inc)
Escrow Provisions. The Deposit and any other sums which the parties agree shall be held in escrow (herein collectively called the “Escrow Agent hereby acknowledges receipt Deposits”), shall be held by the Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdAgent, keep and deliver the Initial Depositin trust, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, disposed of only in accordance with the terms following provisions:
(i) The Escrow Agent shall invest the Escrow Deposits in government insured interest-bearing instruments reasonably satisfactory to both ESS and PRIII Member, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, and shall promptly provide ESS and PRIII Member with confirmation of the investments made.
(ii) If the Closing occurs, the Escrow Agent shall deliver the Escrow Deposits to, or upon the instructions of, PRIII Member on the Closing Date.
(iii) If for any reason the Closing does not occur, the Escrow Agent shall deliver the Escrow Deposits and all interest earned thereon to PRIII Member or ESS only upon receipt of a written demand therefor from such party, subject to the following provisions of this AgreementSubsection (iii). If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any payment of the monies then held by it under Escrow Deposits or the terms of this Agreementinterest earned thereon, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within five ten (510) business days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such period, the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action continue to hold such amount until otherwise directed by written instructions signed by PRIII Member and ESS or a final judgment of a court.
(iv) The parties acknowledge that the dispute between Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and that the Escrow Agent shall not be liable to either of the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate for any action or proceeding omission on its part taken or made in good faith, and not in disregard of this Agreement, but shall be liable for leave to deposit said monies into its negligent acts and for any court of competent jurisdiction pending such adjudication Liabilities (including reasonable attorneys’ fees, expenses and to submit such resolution of such dispute to such court disbursements) incurred by action of interpleader, whereupon PRIII Member or ESS resulting from the Escrow Agent’s obligations hereunder mistake of law respecting the Escrow Agent’s scope or nature of its duties. PRIII Member and ESS shall terminatejointly and severally indemnify and hold the Escrow Agent harmless from and against all Liabilities (including reasonable attorneys’ fees, expenses and disbursements) incurred in connection with the performance of the Escrow Agent’s duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.
(v) ESS shall pay any income taxes on any interest earned on the Escrow Deposits. ESS represents and warrants to the Escrow Agent that its taxpayer identification number is 00-0000000.
(vi) The Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Agent has received and shall hold the Escrow Deposits and the interest earned thereon, in escrow, and shall disburse the Escrow Deposits, and the interest earned thereon, pursuant to the provisions of this Article IX. The provisions of this Article IX shall survive the Closing (and not be merged therein) or earlier termination of this Agreement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Extra Space Storage Inc.)
Escrow Provisions. The Initial Deposit shall be delivered by Buyer to the Title Insurer, National Accounts, Fairfield Office, Attention: Joann E. Dzubak (the “Escrow Agent”) simultaneously with the complete execution of this Agreement. The Adxxxxxxxx Xxxxxxt shall be delivered by Buyer to Escrow Agent in accordance with Section 2.03(b) above. By executing the Receipt as provided herein, Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to on the Purchase Price of the Property under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, said Deposit and the Additional Deposit all other sums delivered to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, it pursuant hereto in accordance with the terms and provisions of this Agreement. Upon receipt from Buyer of the Deposit, Escrow Agent shall invest the Deposit in an interest-bearing account or money market fund acceptable to Buyer and Seller. At the Closing, Escrow Agent shall release the Deposit to Seller, which Deposit shall be credited against the balance of the Purchase Price owed by Buyer to Seller. Escrow Agent shall not be entitled to any fees or compensation for its services in holding the Deposit hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Agreement Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall be entitled to refuse to comply with any such claims or demands so long as such disagreement may continue. In ; and in so refusing, refusing Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall be entitled to continue to refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forthhereinafter. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaidmanner, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), . Further Escrow Agent may bring an shall have the right at all times to pay all sums held by it (i) to the appropriate action party under the terms hereof, or proceeding for leave to deposit said monies (ii) into any court of competent jurisdiction pending such adjudication and to submit such resolution of such after a dispute to such court by action of interpleaderbetween or among the parties hereto has arisen, whereupon Escrow Agent’s obligations hereunder shall terminate.. Seller and Buyer jointly and severally agree to indemnify and hold harmless said Escrow Agent from any and all costs, damages and expenses, including reasonable attorneys’ fees, that said Escrow Agent may incur in its compliance of and in good faith with the terms of this Agreement; provided, however, this indemnity shall not extend to any act of gross negligence or willful malfeasance on the part of the Escrow Agent. A/72617552.10
Appears in 1 contract
Samples: Purchase and Sale Agreement (Berkshire Income Realty Inc)
Escrow Provisions. By executing the Receipt as provided herein, Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to on the Purchase Price of the Property under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, said Deposit and the Additional Deposit all other sums delivered to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, it pursuant hereto in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services in holding the Deposit hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Agreement Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall be entitled to refuse to comply with any such claims or demands so long as such disagreement may continue. In ; and in so refusing, refusing Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall be entitled to continue to refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction located in Broward County, Florida, of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forthhereinafter. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaidmanner, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), . Further Escrow Agent may bring an shall have the right at all times to pay all sums held by it (i) to the appropriate action party under the terms hereof, or proceeding for leave to deposit said monies (ii) into any court of competent jurisdiction pending such adjudication and to submit such resolution of such located in Broward County, Florida, after a dispute to such court by action of interpleaderbetween or among the parties hereto has arisen, whereupon Escrow Agent’s obligations hereunder shall terminate. Seller and Buyer jointly and severally agree to indemnify and hold harmless said Escrow Agent from any and all costs, damages and expenses, including reasonable attorneys’ fees, that said Escrow Agent may incur in its compliance of and in good faith with the terms of this Agreement; provided, however, this indemnity shall not extend to any act of gross negligence or willful malfeasance on the part of the Escrow Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Berkshire Income Realty Inc)
Escrow Provisions. (a) The Deposit Escrow Agent hereby acknowledges receipt by shall hold the Deposits in escrow in an interest-bearing bank account at a federally insured banking institution (the "Deposit Escrow Account").
(b) The Deposit Escrow Agent shall hold the Deposits in escrow in the Deposit Escrow Account until the Closing or sooner termination of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep this Agreement and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided shall hold or apply such proceeds in Section 1.04(a) hereof, in strict accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent At the Closing, the Deposits shall be liable only credited against the Purchase Price to hold said sums and deliver be paid at the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow AgentClosing. In the event of any disagreement between Buyer a termination of this Agreement and Seller resulting in any adverse claims and demands being made in connection with or either party makes a written demand upon the Deposit Escrow Agent for the monies involved herein or affected herebyrelease of the Deposit, the Deposit Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusingshall, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until within twenty-four (a24) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall hours give written notice to the other party (the “Notified Party”)of such demand. If the Deposit Escrow Agent does not receive a written objection within five (5) business days Business Days after the giving of such notice, the Deposit Escrow Agent does not receive any written objection is hereby authorized to make such payment to the Escrow Demand from party demanding the Notified Party, Escrow Agent shall comply with the Escrow DemandDeposit. If the Deposit Escrow Agent does receive such written objection from within such five (5) Business Day period or if for any other reason the Notified Party Deposit Escrow Agent in a timely manner as aforesaidgood faith shall elect not to make such payment, the Deposit Escrow Agent shall take no further action continue to hold such amount until the dispute between the parties has been resolved pursuant to either clause (a) otherwise directed by joint written instructions from Buyer and Seller or (b) above, provided, however, in the case a final judgment of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any a court of competent jurisdiction pending such adjudication jurisdiction.
(c) The parties acknowledge that the Deposit Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Deposit Escrow Agent shall not be deemed to submit such resolution be the agent of such dispute either of the parties, and the Deposit Escrow Agent shall not be liable to such court by action either of interpleaderthe parties for any act or omission on its part, whereupon other than for its gross negligence or willful misconduct. Seller and Buyer shall jointly and severally indemnify and hold the Deposit Escrow Agent harmless from and against all costs, claims and expenses, including attorneys' fees and disbursements, incurred in connection with the performance of the Deposit Escrow Agent’s obligations hereunder 's duties hereunder.
(d) By signing this Agreement, the Deposit Escrow Agent has acknowledged its agreement to this Section 15.4 as well as the other provisions hereof with respect to Deposit Escrow Agent's duties and responsibilities by signing this Agreement in the place indicated following the signatures of Seller and Buyer.
(e) The Deposit Escrow Agent shall terminatedeliver an Insured Closing Protection Letter for Buyer's benefit, upon receipt of Buyer's funds (deposit or otherwise).
Appears in 1 contract
Samples: Share Purchase Agreement (Chesapeake Lodging Trust)
Escrow Provisions. The Deposit and any other sums (including, without limitation, any interest earned thereon) which the parties agree shall be held in escrow (herein collectively called the “Escrow Agent hereby acknowledges receipt Deposits”), shall be held by the Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdAgent, keep and deliver the Initial Depositin trust, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, disposed of only in accordance with the terms following provisions:
(a) The Escrow Agent shall invest the Escrow Deposits in government insured interest-bearing instruments reasonably satisfactory to both Buyer and Seller, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, and shall promptly provide Buyer and Seller with confirmation of the investments made.
(b) If the Closing occurs, the Escrow Agent shall deliver the Escrow Deposits to, or upon the instructions of, Seller on the Closing Date.
(c) If for any reason the Closing does not occur, the Escrow Agent shall deliver the Escrow Deposits and all interest earned thereon to Seller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions of this AgreementSubsection (c). If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any payment of the monies then held by it under Escrow Deposits or the terms of this Agreementinterest earned thereon, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within five (5) business days after the giving of such noticenotice (provided, Escrow Agent does not receive any written objection however, that if Buyer terminates this Agreement prior to the Escrow Demand from expiration of the Notified PartyDue Diligence Period, the Escrow Agent shall comply with return the Deposit to Buyer promptly after providing written notice to Seller), the Escrow DemandAgent is hereby authorized to make such payment. If the Escrow Agent does receive such written objection from within such period, the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action continue to hold such amount until otherwise directed by written instructions signed by Seller and Buyer or a final judgment of a court.
(d) The parties acknowledge that the dispute between Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and that the Escrow Agent shall not be liable to either of the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate for any action or proceeding omission on its part taken or made in good faith, and not in disregard of this Agreement, but shall be liable for leave to deposit said monies into its negligent acts and for any court of competent jurisdiction pending such adjudication Liabilities (including reasonable attorneys’ fees, expenses and to submit such resolution of such dispute to such court disbursements) incurred by action of interpleader, whereupon Seller or Buyer resulting from the Escrow Agent’s obligations hereunder shall terminate.mistake of law respecting the Escrow Agent’s scope or nature of
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Real Estate Income Trust, Inc.)
Escrow Provisions. (a) The Escrow Agent hereby acknowledges receipt by shall hold the Xxxxxxx Money in escrow in an interest-bearing bank account (the “Escrow Account”) at the direction of Seller and Buyer.
(b) The Escrow Agent shall hold the Xxxxxxx Money in escrow in the Escrow Account until the Closing or sooner termination of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep this Agreement and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, shall hold or apply such proceeds in accordance with the terms and provisions of this AgreementSection 15.4(b). Seller and Buyer understand that no interest is earned on the Xxxxxxx Money during the time it takes to transfer into and out of the Escrow Account. At Closing, the Xxxxxxx Money shall be paid by the Escrow Agent shall to, or at the direction of, Seller. If for any reason the Closing does not be entitled to any fees or compensation for its services hereunder. occur and either party makes a written demand upon the Escrow Agent shall be liable only to hold said sums and deliver for payment of such amount, the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damagesshall, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall within 24 hours give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection within five (5) business days Business Days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such five Business Day period or if for any other reason the Notified Party Escrow Agent in a timely manner as aforesaidgood faith shall elect not to make such payment, the Escrow Agent shall take no further action continue to hold such amount until the dispute between otherwise directed by joint written instructions from the parties has been resolved pursuant to either clause (a) this Agreement or (b) above, provided, however, in the case a final judgment of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any a court of competent jurisdiction pending such adjudication and jurisdiction. However, the Escrow Agent shall have the right at any time to submit such resolution deposit the Xxxxxxx Money with the clerk of the court of New York County. The Escrow Agent shall give written notice of such dispute deposit to Seller and Buyer. Upon such court by action deposit the Escrow Agent shall be relieved and discharged of interpleaderall further obligations and responsibilities hereunder.
(c) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, whereupon that the Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or omission on its part, other than for its gross negligence or willful misconduct. Seller and Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including attorneys’ fees and disbursements, incurred in connection with the performance of the Escrow Agent’s obligations hereunder shall terminateduties hereunder.
(d) The Escrow Agent has acknowledged its agreement to these provisions by signing this Agreement in the place indicated following the signatures of Seller and Buyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Ashford Hospitality Prime, Inc.)
Escrow Provisions. 15.1 Seller and Buyer hereby designate Mombach, Xxxxx & Xxxxxx, P.A. as Escrow Agent hereby acknowledges receipt by Escrow Agent of Agent, to receive and hold the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit subject to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forthsubsection. Upon receipt by Escrow Agent of a statement from either Seller or Buyer or Seller pertaining to a controversy relating to the Deposit and/or demanding retention of the Deposit by Escrow Agent, then in that event Escrow Agent shall have the following options: (the “Notifying Party”) of any notice or request (the “Escrow Demand”i) to perform any act retain the Deposit until written agreement is reached between the parties or disburse any portion until a final judgment has been entered by a court of competent jurisdiction and the appeal period has expired thereon or, if appealed, after the matter has finally been concluded; (ii) to place the Deposit with the Clerk of the monies held Circuit Court having jurisdiction and to notify the parties in accordance with the notice provisions set forth herein; (iii) to file an action in the nature of an interpleader joining the parties hereto and, thereafter, complying with the ultimate judgment of the Court with regard to the disposition of the dispute. All costs incurred by Escrow Agent under pertaining to any such controversy shall be and constitute a charge against the terms of this Agreement, Deposit.
15.2 Escrow Agent shall give written notice to not be bound by any modifications, cancellation or rescission of this Agreement unless in writing and signed by all parties thereto. In no event, however, shall any modification of this Agreement which shall affect the other party (the “Notified Party”). If within five (5) business days after the giving rights or duties of such notice, Escrow Agent does not receive any be binding on Escrow Agent unless it shall have given its prior written objection to the Escrow Demand from the Notified Party, consent. Escrow Agent shall comply with the make no charge for its service in acting as Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, Agent; provided, however, that if there is any dispute relating to the Deposit or its disposition, all parties hereto shall be jointly and severally obligated to reimburse Escrow Agent for all of its costs and expenses in connection therewith, including reasonable attorneys fees, and to indemnify it and hold it harmless against any claim asserted against it or any liability, loss or damage incurred by it in connection therewith, unless any misdelivery of the Deposit or a portion thereof shall be due to willful breach of this Agreement or gross negligence on the part of Escrow Agent. It is agreed that Escrow Agent shall have full discretion as to whom it may retain as legal counsel to protect its interest (including retaining its own firm) and the same shall not affect or in any way prejudice or limit the Escrow Agent's entitlement to reasonable attorneys' fees for services of such attorneys. Buyer acknowledges that Escrow Agent has represented Seller in the case negotiation of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending this Agreement and in certain other matters and such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon shall not limit Escrow Agent’s obligations hereunder shall terminate's right to represent Seller in the event of a dispute hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (AGU Entertainment Corp.)
Escrow Provisions. (a) Escrow Agent hereby acknowledges receipt shall not be bound in any way by any other agreement or contract between Seller and Purchaser, whether or not Escrow Agent has knowledge thereof. Escrow Agent’s only duties and responsibilities with respect to the Deposit shall be to hold the Deposit and other documents delivered to it as agent and to dispose of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, such documents in accordance with the terms of this Agreement. Without limiting the generality of the foregoing, Escrow Agent shall have no responsibility to protect the Deposit and provisions shall not be responsible for any failure to demand, collect or enforce any obligation with respect to the Deposit or for any diminution in value of the Deposit from any cause, other than Escrow Agent’s gross negligence or willful misconduct. Escrow Agent may, at the expense of Seller and Purchaser, consult with counsel and accountants in connection with its duties under this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein hereto for any act taken, suffered or permitted by it in good faith in accordance with the provisions advice of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only counsel and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties heretoaccountants. Escrow Agent shall not be required obligated to disburse take any action hereunder that may, in its reasonable judgment, result in any liability to it unless Escrow Agent shall have been furnished with reasonable indemnity satisfactory in amount, form and substance to Escrow Agent.
(b) Escrow Agent is acting as a stakeholder only with respect to the Deposit. If there is any dispute as to whether Escrow Agent is obligated to deliver the Deposit or as to whom the Deposit is to be delivered, Escrow Agent shall not make any delivery, but shall hold the Deposit until receipt by Escrow Agent of an authorization in writing, signed by all the parties having an interest in the dispute, directing the disposition of the monies held by Deposit, or, in the absence of authorization, Escrow Agent shall hold the Deposit until the final determination of the rights of the parties in an appropriate proceeding. Escrow Agent shall have no responsibility to determine the authenticity or validity of any notice, instruction, instrument, document or other item delivered to it, and it shall be fully protected in acting in accordance with any written notice, direction or instruction given to it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt believed by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) it to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)be authentic. If written authorization is not given, or proceedings for a determination are not begun, within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminate.thirty
Appears in 1 contract
Samples: Purchase and Sale Agreement
Escrow Provisions. (a) The Escrow Agent hereby acknowledges receipt by shall hold the Deposit in escrow in the Escrow Agent Account until the Closing or sooner termination of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep this Agreement and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, shall hold or apply such proceeds only in accordance with the terms and provisions of this Agreement. The Seller and the Buyer understand that no interest is earned on the Deposit during the time it takes to transfer into and out of the Escrow Account. At the Closing, the Deposit shall be paid by the Escrow Agent shall to, or at the direction of, the Seller. If for any reason the Closing does not be entitled to any fees or compensation for its services hereunder. occur and either party makes a written demand upon the Escrow Agent shall be liable only to hold said sums and deliver for payment of the same to Deposit, the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damagesshall, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall within 24 hours give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection within five (5) business days 5 Business Days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such 5 Business Day period or if for any other reason the Notified Party Escrow Agent in a timely manner as aforesaidgood faith shall elect not to make such payment, the Escrow Agent shall take no further action continue to hold such amount until the dispute between otherwise directed by joint written instructions from the parties has been resolved pursuant to either clause (a) this Agreement or a final judgment of a court of competent jurisdiction. However, the Escrow Agent shall have the right at any time to deposit the Deposit with the clerk of the court of New York County. The Escrow Agent shall give written notice of such deposit to the Seller and the Buyer. Upon such deposit the Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
(b) above, provided, however, in The parties acknowledge that the case of clause (a), Escrow Agent may bring an appropriate action is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or proceeding omission on its part, other than for leave to deposit said monies into any court its gross negligence or willful misconduct. The Seller and the Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including attorneys’ fees and disbursements, incurred in connection with the performance of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon the Escrow Agent’s obligations hereunder duties hereunder.
(c) The Escrow Agent has acknowledged its agreement to these provisions by signing this Agreement in the place indicated following the signatures of the Seller and the Buyer.
(d) Seller and Buyer agree that the Escrow Agent shall terminatenot be responsible for any penalties, loss of principal or interest, or the consequences of a delay in withdrawal of the Deposit which may be imposed as a result of the making or the redeeming of the above investment, as the case may be, pursuant to this Agreement. Seller and Buyer also agree that Escrow Agent shall not be liable for any loss or impairment of the Deposit while the Deposit is in the course of collection or if such loss or impairment results from the failure, insolvency or suspension of the financial institution in which the Deposit is deposited.
(e) Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document, provided that Escrow Agent acted in good faith in so relying.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital New York City REIT, Inc.)
Escrow Provisions. (a) The Escrow Agent hereby acknowledges receipt by shall hold the Xxxxxxx Money in escrow in a bank account at a federally insured banking institution (the “Escrow Account”).
(b) The Escrow Agent shall hold the Xxxxxxx Money in escrow in the Escrow Account until the Closing or sooner termination of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep this Agreement and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, shall hold or apply such proceeds in accordance with the terms and provisions of this Agreementsubsection (b). The Seller and the Buyer understand that no interest is earned on the Xxxxxxx Money during the time it takes to transfer into and out of the Escrow Account. At the Closing, the Xxxxxxx Money shall be paid by the Escrow Agent shall to, or at the direction of, the Seller. If for any reason the Closing does not be entitled to any fees or compensation for its services hereunder. occur and either party makes a written demand upon the Escrow Agent shall be liable only to hold said sums and deliver for payment of such amount, the same Escrow Agent shall, prior to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any end of the monies then held by it under the terms of this Agreementnext Business Day, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection within five (5) business days 5 Business Days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such 5 Business Day period or if for any other reason the Notified Party Escrow Agent in a timely manner as aforesaidgood faith shall elect not to make such payment, the Escrow Agent shall take no further action continue to hold such amount until the dispute between otherwise directed by joint written instructions from the parties has been resolved pursuant to either clause (a) this Agreement or (b) above, provided, however, in the case a final judgment of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any a court of competent jurisdiction pending such adjudication and jurisdiction. However, the Escrow Agent shall have the right at any time to submit such resolution deposit the Xxxxxxx Money with the clerk of the court of the Parish in which the Land is located. The Escrow Agent shall give written notice of such dispute deposit to the Seller and the Buyer. Upon such court by action deposit the Escrow Agent shall be relieved and discharged of interpleaderall further obligations and responsibilities hereunder.
(c) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, whereupon that the Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or omission on its part, other than for its gross negligence or willful misconduct. The Seller and the Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including attorneys’ fees and disbursements, incurred in connection with the performance of the Escrow Agent’s obligations hereunder shall terminateduties hereunder.
(d) The Escrow Agent has acknowledged its agreement to these provisions by signing this Agreement in the place indicated following the signatures of the Seller and the Buyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Carey Watermark Investors Inc)
Escrow Provisions. (a) Escrow Agent hereby acknowledges receipt shall hold the Escrow Funds in escrow in an interest-bearing account (or as otherwise agreed in writing by Seller, Purchaser and Escrow Agent Agent) in a New York Clearing House Bank or in a nationally recognized "money-market fund" until the Closing or sooner termination of this Agreement and shall pay over or apply the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, Funds in accordance with the terms and further provisions of this AgreementSection 1.3. If Purchaser shall receive the interest earned on the Deposit, Purchaser shall pay all income taxes owed in connection therewith. The employer identification number of Purchaser is set forth on the signature page hereof. Escrow Agent shall not be entitled liable to Purchaser or Seller for loss occasioned by any fees or compensation for its services hereunder. deposit of the Escrow Funds made in accordance with this Section 1.3.
(b) At the Closing, the Escrow Funds shall be paid by Escrow Agent to Seller.
(c) Subject to, and following in compliance with, the provisions of Section 1.3(e) below, Escrow Agent shall be liable only deliver to hold said sums Seller the Escrow Funds within ten (10) business days following Escrow Agent's receipt of Seller's written demand ("Seller's Demand") for the Escrow Funds stating that Purchaser has defaulted in the performance of Purchaser's obligation to purchase the Loan under this Agreement or that Seller is entitled to use the Escrow Funds to restore the Real Property as provided in Section 8.2(b) hereof (it being understood and deliver agreed that (i) Seller shall have no obligation to restore the same Real Property, and (ii) to the parties named herein extent Seller uses all or any portion of the Escrow Funds to restore the Real Property, Purchaser shall promptly pay to Escrow Agent an amount equal to the Escrow Funds used to restore the Real Property.) Simultaneously with Seller's delivery of Seller's Demand to Escrow Agent, Seller shall deliver a copy of Seller's Demand to Purchaser.
(d) Subject to, and following in compliance with, the provisions of Section 1.3(e) hereof, Escrow Agent shall deliver to Purchaser the Escrow Funds within ten (10) business days following Escrow Agent's receipt of Purchaser's written demand ("Purchaser's Demand") therefor stating that (i) the Closing did not occur on the Scheduled Closing Date or on such later date to which the Closing shall have been adjourned, as a result of Seller's inability to transfer the Loan in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of or (ii) Seller is otherwise in material breach under this Agreement. Simultaneously with Purchaser's delivery of Purchaser's Demand to Escrow Agent, Purchaser shall deliver a copy of Purchaser's Demand to Seller.
(e) If Escrow Agent is acting receives either Seller's Demand or Purchaser's Demand pursuant to and in accordance with Section 1.3 (c) or (d) hereof, as the capacity of a depository only and shall not be liable or responsible case may be, then, in such event, prior to anyone for any damages, losses or expenses unless same shall have been caused by releasing the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected herebyFunds, Escrow Agent shall refuse to comply with any such claims deliver a copy of Seller's Demand or demands so long Purchaser's Demand, as such disagreement the case may continue. In so refusingbe, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other non-demanding party (the “Notified Party”). If within five (5) business days after the giving of such notice, receipt thereof by Escrow Agent. If Escrow Agent does shall have complied with the preceding sentence and shall not receive any have received a written objection to the proposed payment before the tenth (10th) business day following the date of Seller's Demand or Purchaser's Demand, as the case may be, then, in such event, Escrow Demand Agent is hereby authorized and directed to make the payment set forth in such demand. If Escrow Agent shall have received a written objection from the Notified Partyeither party before such payment, then, in such event, Escrow Agent shall comply with continue to hold the Escrow Demand. If Escrow Agent does receive Funds until otherwise directed by written objection instructions from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between both of the parties has been resolved pursuant to either clause (a) hereto or (b) above, by a final judgment of a court of competent jurisdiction; provided, however, in the case of clause (a), that Escrow Agent may bring an appropriate action or proceeding for leave shall have the right, at any time, to deposit said monies into the Escrow Funds with any court of competent jurisdiction pending and thereby be relieved and discharged of any further obligations under this Agreement. Escrow Agent shall give written notice of any such adjudication deposit to Seller and Purchaser. Escrow Agent shall be entitled to submit such resolution rely upon the authenticity of any signature and/or the validity of any writing received by Escrow Agent pursuant to, or otherwise relating to, this Agreement.
(f) The parties acknowledge and agree that (4) Escrow Agent is acting solely as a stakeholder at their request and for their convenience, (ii) Escrow Agent shall not be deemed to be the agent of either of the parties hereto (provided, however, that the parties hereto acknowledge and agree that (x) Purchaser, by its execution and delivery of this Agreement, has pledged to Seller the Escrow Funds as security for Purchaser's obligations hereunder, (y) Purchaser hereby grants to Seller a first priority lien on, and security interest in, the Escrow Funds, and (z) Escrow Agent shall be deemed to be Seller's agent for the purposes of such dispute to such court by action pledge and grant of interpleadersecurity interest, whereupon (iii) any conflict of interest that may exist because of the Escrow Agent’s obligations 's representation of Seller hereunder is hereby waived, and (iv) Escrow Agent shall terminatenot be liable to either of the parties hereto for any act or omission on its part as Escrow Agent. Seller and Purchaser, jointly and severally, shall indemnify, defend and hold harmless Escrow Agent from and against any and all losses, liabilities, costs, claims, damages or expenses (including, without limitation, reasonable attorneys' fees and costs) which may be incurred or suffered by Escrow Agent in connection with the performance of Escrow Agent's duties hereunder other than on account of Escrow Agent's own direct gross negligence or willful misconduct.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Reckson Associates Realty Corp)
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price of the Property under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, said Deposit and the Additional Deposit all other sums delivered to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, it pursuant hereto in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, agreement Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In ; and in so refusing, refusing Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forthhereinafter. Upon receipt by Escrow Agent from either Buyer or Seller (the “"Notifying Party”") of any notice or request (the “"Escrow Demand”") to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “"Notified Party”"). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaidmanner, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), . Further Escrow Agent may bring an appropriate action or proceeding for leave shall have the right at all times to deposit said monies pay all sums held by it into any court of competent jurisdiction pending such adjudication and to submit such resolution of such after a dispute to such court by action of interpleaderbetween or among the parties hereto has arisen, whereupon Escrow Agent’s 's obligations hereunder shall terminate. Seller and Buyer jointly and severally agree to indemnify and hold harmless said Escrow Agent from any and all costs, damages and expenses, including reasonable attorneys' fees, that said Escrow Agent may incur in its compliance of and in good faith with the terms of this agreement; provided, however, this indemnity shall not extend to any act of gross negligence or willful malfeasance on the part of the Escrow Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Krupp Realty LTD Partnership Vii)
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, said Deposit and the Additional Deposit all other sums delivered to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, it pursuant hereto in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, agreement Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In ; and in so refusing, refusing Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forthhereinafter. Upon receipt by Escrow Agent from either Buyer or Seller (the “"Notifying Party”") of any notice or request (the “"Escrow Demand”") to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “"Notified Party”"). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaidmanner, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), . Further Escrow Agent may bring an appropriate action or proceeding for leave shall have the right at all times to deposit said monies pay all sums held by it into any court of competent jurisdiction pending such adjudication and to submit such resolution of such after a dispute to such court by action of interpleaderbetween or among the parties hereto has arisen, whereupon Escrow Agent’s 's obligations hereunder shall terminate. Seller and Buyer jointly and severally agree to indemnify and hold harmless said Escrow Agent from any and all costs, damages and expenses, including reasonable attorneys' fees, that said Escrow Agent may incur in its compliance of and in good faith with the terms of this agreement; provided, however, this indemnity shall not extend to any act of gross negligence or willful malfeasance on the part of the Escrow Agent.
Appears in 1 contract
Samples: Stock Purchase Agreement (Krupp Realty LTD Partnership Iv)
Escrow Provisions. (a) The Escrow Agent hereby acknowledges receipt by shall hold the Deposit in escrow in an interest-bearing bank account at a federally insured banking institution (the “Escrow Account”).
(b) The Escrow Agent shall hold the Deposit in escrow in the Escrow Account until the Closing or sooner termination of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep this Agreement and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, shall hold or apply such proceeds in accordance with the terms and provisions of this Agreementsubsection (b). The Seller and the Buyer understand that no interest is earned on the Deposit during the time it takes to transfer into and out of the Escrow Account. At the Closing, the Deposit shall be paid by the Escrow Agent shall to, or at the direction of, the Seller. If for any reason the Closing does not be entitled to occur and/or at any fees or compensation for its services hereunder. time either party makes a written demand upon the Escrow Agent shall be liable only to hold said sums and deliver for payment of such amount, the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damagesshall, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall within 24 hours give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection within five (5) business days Business Days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such five Business Day period or if for any other reason the Notified Party Escrow Agent in a timely manner as aforesaidgood faith shall elect not to make such payment, the Escrow Agent shall take no further action continue to hold such amount until the dispute between otherwise directed by joint written instructions from the parties has been resolved pursuant to either clause (a) this Agreement or (b) above, provided, however, in the case a final judgment of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any a court of competent jurisdiction pending such adjudication and jurisdiction. However, the Escrow Agent shall have the right at any time to submit such resolution deposit the Deposit with the clerk of the court of New York County. The Escrow Agent shall give written notice of such dispute deposit to the Seller and the Buyer. Upon such court by action deposit the Escrow Agent shall be relieved and discharged of interpleaderall further obligations and responsibilities hereunder.
(c) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, whereupon that the Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or omission on its part, other than for its gross negligence or willful misconduct. The Seller and the Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including attorneys’ fees and disbursements, incurred in connection with the performance of the Escrow Agent’s obligations hereunder shall terminateduties hereunder.
(d) The Escrow Agent has acknowledged its agreement to these provisions by signing this Agreement in the place indicated following the signatures of the Seller and the Buyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Interstate Hotels & Resorts Inc)
Escrow Provisions. (a) The obligations and duties of the Escrow Agent hereby acknowledges receipt by in connection herewith are confined to those specifically enumerated herein and the Escrow Agent shall not be liable or responsible for any act or failure to act on its part except for its own willful misconduct or gross negligence.
(b) The duties of the Initial Deposit paid by Buyer to Escrow Agent hereunder shall be applied limited to the Purchase Price under safekeeping of the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, Fund and the Additional Deposit to disposition of the extent received by Escrow Agent as provided in Section 1.04(a) hereof, same solely in accordance with the terms and provisions conditions hereof and no implied duties or obligations shall be read herein against the Escrow Agent.
(c) The Escrow Agent may act or refrain from acting with respect to any matter referred to herein in full reliance upon the advice of this Agreement. counsel of its choice, and shall be fully protected and released as to any matter with respect to which it shall have acted or refrained from acting upon the advice of such counsel.
(d) The Escrow Agent may rely or act upon orders or directions, instruments or signatures believed by it to be genuine and may assume that any person purporting to give any written notice, advice or instruction in connection therewith has been fully authorized to do so.
(e) The Escrow Agent shall not be entitled to bound by any fees modification, amendment, termination, cancellation, rescission or compensation for supercedence of the terms and conditions contained herein unless the same shall be in writing and signed by the other parties hereto. However, the Escrow Agent's duties as Escrow Agent hereunder shall not be affected, unless the Escrow Agent shall have given its services hereunder. prior written consent thereto.
(f) If the Escrow Agent shall be liable only uncertain as to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreementits duties or rights hereunder, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting taking any action other than to keep safely the Escrow Fund, until (a) it shall be directed otherwise in writing jointly by the rights Company and Schrxxxx xx by a final judgment or order of a court of competent jurisdiction. Any such judgment shall be delivered to the adverse claimants shall have been finally adjudicated in Escrow Agent with a written opinion of counsel setting forth that such judgment is final and that such court is a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and that Escrow Agent shall have been notified be fully protected in writing of such agreement signed by the parties hereto. relying thereon.
(g) The Escrow Agent shall not be required to disburse institute or defend any of action or legal proceeding involving the monies held terms and conditions contained herein. For all payments and deliveries made by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed the Escrow Demand (as hereinafter defined) from either Buyer or Seller Agent in accordance with the provisions hereinafter set forth. Upon receipt by hereof, the Escrow Agent from either Buyer or Seller (shall have full release, discharge and acquittance and shall not be subject to any claim on the “Notifying Party”) part of any notice persons beneficially interested hereunder. The Company and Schrxxxx xxxeby agree, jointly and severally, to indemnify and hold harmless the Escrow Agent and its successors and assigns from and against any and all claims, disputes or request defenses which may arise between the Company and Schrxxxx.
(h) The Company shall reimburse and indemnify the “Escrow Demand”) to perform Agent for, and hold it harmless against, any act and all loss, liability, costs or disburse any portion expenses in connection herewith including reasonable attorneys' fees, incurred on the part of the monies held by Escrow Agent under or arising out of or in connection with its acceptance of, or the terms performance of its duties and obligations under, this Agreement, Escrow Agent shall give written notice to as well as the other party (the “Notified Party”). If within five (5) business days after the giving reasonable costs and expenses of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminate.defending against
Appears in 1 contract
Samples: Escrow Agreement (Creative Products International Inc)
Escrow Provisions. A. The Deposit shall be held in escrow by the Escrow Agent hereby acknowledges receipt in one or more interest-bearing FDIC insured bank accounts selected by Escrow Agent on the terms hereinafter set forth. All interest earned thereon shall be deemed part of the Initial Deposit paid by Buyer to be applied to Deposit.
B. When the Purchase Price under the terms hereof. Closing has occurred, Escrow Agent agrees to hold, keep and shall deliver the Initial Deposit to Seller in which event the Deposit, and the Additional Deposit to interest included therein, shall be applied in reduction of the extent received by Purchase Price.
C. If Escrow Agent as provided receives a written request for the Deposit signed by Seller stating that Purchaser has defaulted in Section 1.04(a) hereof, in accordance with the terms and provisions performance of its obligations under this Agreement. , Escrow Agent shall not be entitled deliver a copy or copies of such request to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein Purchaser in accordance with the provisions of this AgreementParagraph 23 hereof, it being expressly understood that and no earlier than the third business day after the receipt of such notice by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected herebyPurchaser, Escrow Agent shall refuse deliver the Deposit to comply with any such claims Seller.
D. If Escrow Agent receives a written request signed by Purchaser stating that this Agreement has been canceled or demands so long as such disagreement may continue. In so refusingterminated and that Purchaser is entitled to the Deposit, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in deliver a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing copy of such agreement signed by the parties hereto. Escrow Agent shall not be required request to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon of Paragraph 23 hereof, and no earlier than the third business day after the receipt of such notice by Seller, Escrow Agent shall deliver the Deposit to Purchaser.
E. All mailings and notices from Escrow Agent to Seller and/or Purchaser, or from Purchaser and/or Seller to Escrow Agent, provided for in this Escrow Agreement shall be given in the manner set forth in Paragraph 23 above. All notices from Purchaser and Seller must be given by a person having proper authority to act by and on behalf of such party and shall be duly notarized.
F. If Escrow Agent receives written instructions signed by Seller instructing Escrow Agent to pay the Deposit to Purchaser, or if Escrow Agent receives written instructions signed by Purchaser instructing Escrow Agent to pay the Deposit to Seller, Escrow Agent shall deliver the Deposit in accordance with such instructions.
G. Notwithstanding the foregoing provisions of (C) and (D) above, if Escrow Agent shall have received a written notice of objection from Seller or Purchaser, or shall have received at any time before actual disbursement of the Deposit a written notice signed by either Buyer Seller or Purchaser advising that litigation between Seller and Purchaser over entitlement to the Deposit has been commenced, or shall otherwise believe in good faith at any time that a disagreement or dispute has arisen between the parties hereto over entitlement to the Deposit (whether or not litigation has been instituted), Escrow Agent shall have the “Notifying Party”) of any right, upon written notice or request to both Seller and Purchaser, (the “Escrow Demand”i) to perform deposit the Deposit with the Clerk of the Court in which any act litigation is pending, and/or (ii) to take such affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Agent, without limitation, the depositing of the Deposit with a court of competent jurisdiction and the commencement of an action for interpleader, the costs thereof to be borne by whichever of Seller or disburse Purchaser is the losing party, and thereupon Escrow Agent shall be released of and from all liability hereunder except for any previous gross negligence or willful default.
H. Escrow Agent shall have no duty to invest all or any portion of the monies held Deposit during any period of time Escrow Agent may hold the same prior to disbursement thereof except in one or more interest-bearing accounts as aforesaid, and any disbursements or deliveries of the Deposit required herein to be made by Escrow Agent shall be with such interest, if any, as shall have been earned thereon.
I. Purchaser acknowledges that Escrow Agent is also counsel to Seller and shall have the right to represent Seller in any dispute between Seller and Purchaser regarding the disposition of the Deposit or otherwise.
J. Escrow Agent shall be under the terms of no obligation to deliver any instrument or documents to a court or take any other legal action in connection with this AgreementAgreement or towards its enforcement, or to appear in, prosecute or defend any action or legal proceeding which, in Escrow Agent's opinion, would or might involve it in any cost, expense, loss or liability unless, as often as Escrow Agent may require, Escrow Agent shall give written notice be furnished with security and indemnity satisfactory to the other party (the “Notified Party”). If within five (5) business days after the giving of it against all such noticecosts, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Partyexpenses, losses or liabilities.
K. Escrow Agent shall comply with the not be liable for any error in judgment or for any act done or omitted by it in good faith, or for any mistake of fact or law, and is released and exculpated from all liability hereunder except for willful misconduct or gross negligence.
L. Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in Agent's obligations hereunder shall be as a timely manner as aforesaiddepositary only, and Escrow Agent shall take no further action until not be responsible or liable in any manner whatever for the dispute between sufficiency, correctness, genuineness or validity of any notice, written instructions or other instrument furnished to it or deposited with it, or for the parties has been resolved pursuant form of execution of any thereof, or for the identity or authority of any person depositing or furnishing same.
M. Escrow Agent shall not have any duties or responsibilities except those set forth in this Paragraph 29, and shall not incur any liability in acting upon any signature, notice, request, waiver, consent, receipt or other paper or document believed by it to either clause (a) or (b) abovebe genuine, provided, however, in the case of clause (a), and Escrow Agent may bring an appropriate action assume that any person purporting to give any notice or proceeding advice on behalf of any party in accordance with the provisions hereof has been duly authorized to do so. Seller and Purchaser hereby jointly and severally indemnify and agree to hold and save Escrow Agent harmless from and against any and all loss, damage, cost or expense Escrow Agent may suffer or incur as Escrow Agent hereunder unless caused by its gross negligence or willful default.
N. Escrow Agent shall be entitled to consult with counsel in connection with its duties hereunder. Seller and Purchaser agree to reimburse Escrow Agent for leave all costs and expenses incurred by Escrow Agent in performing its duties as Escrow Agent including, but not limited to, attorneys' fees (either paid to deposit said monies into retained attorneys or amounts representing the fair value of legal services rendered to itself).
O. The terms and provisions of this Paragraph 29 shall create no right in any court of competent jurisdiction pending such adjudication person, firm or corporation other than the parties hereto and their respective successors and permitted assigns, and no third party shall have the right to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminateenforce or benefit from the terms hereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Mack Cali Realty Corp)
Escrow Provisions. Escrow Agent hereby acknowledges receipt by shall hold the Down Payment in accordance with this Agreement and shall release the Down Payment to the party entitled to same as provided in this Agreement, unless there is a dispute between the parties as to the Down Payment, in which event Escrow Agent shall only release the Down Payment in accordance with a joint instruction signed by Seller and Buyer, or a final judgment of a court of competent jurisdiction, or as otherwise provided in this Agreement.
(a) Escrow Agent shall deposit the Initial Deposit paid Down Payment in an interest bearing attorney’s escrow account at Citibank, N.A.
(b) Buyer and Seller agree that any notice or instruction sent by either Buyer or Seller to Escrow Agent shall simultaneously be applied sent to the Purchase Price under the terms hereofother party to this Agreement. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent that a copy of any notice or instruction received by Escrow Agent as provided in Section 1.04(afrom one party to this Agreement (either Buyer or Seller) hereofshall be promptly sent to the other party to this Agreement. If Escrow Agent shall receive an instruction from either party, Escrow Agent may act in accordance with such instruction unless the terms other party shall notify Escrow Agent not to act in accordance with such instruction (the “Objection Notice”), which Objection Notice must be received by Escrow Agent within ten (10) calendar days after the date the first notice is received. The Objection Notice shall set forth the basis of objection to such disbursement with specificity. If Escrow Agent receives any Objection Notice, then Escrow Agent shall not disburse the Down Payment unless and provisions until Escrow Agent has received subsequent instructions to do so, signed by both Buyer and Seller, or a court of appropriate jurisdiction has issued a final order ordering such disbursement or Escrow Agent has deposited such funds with a court of competent jurisdiction in connection with an interpleader action.
(c) Escrow Agent is hereby authorized and directed to deliver the Down Payment and all interest accrued thereon to Seller on the Closing Date, provided that if prior thereto Seller has defaulted hereunder, Escrow Agent is authorized and directed to deliver the Down Payment plus all interest accrued thereon to Buyer or if prior thereto Buyer has defaulted hereunder, Escrow Agent is authorized and directed to deliver the Down Payment plus all interest accrued thereon to Seller.
(d) If there is a dispute between Buyer and Seller as to which party is entitled to the Down Payment, Escrow Agent may at any time deposit the Down Payment and all accrued interest thereon with a court of competent jurisdiction, in connection with an interpleader action, and upon notice to Seller and Buyer of such deposit, Escrow Agent shall have no further responsibility or liability hereunder.
(e) Seller and Buyer acknowledge that Escrow Agent is merely a stakeholder, and that Escrow Agent shall not be liable for any act or omission unless taken or suffered in bad faith or in willful disregard of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Agent’s sole duties are as indicated herein, and upon the disposition of the Down Payment as provided herein, Escrow Agent shall be liable only deemed to have performed all of such duties and automatically shall be discharged from any further obligation hereunder. Seller and Buyer shall indemnify and hold said sums Escrow Agent harmless from and deliver the same to the parties named herein against all liabilities, claims, damages or expenses, including reasonable attorney’s fees, incurred in accordance connection with the provisions performance of this Agreement, it being expressly understood Escrow Agent’s duties hereunder.
(f) The parties acknowledge that by acceptance of this Agreement, Escrow Agent is acting counsel to Seller, and Escrow Agent may continue to represent Seller in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it dispute under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminate.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Osi Pharmaceuticals Inc)
Escrow Provisions. a. Escrow Agent hereby acknowledges receipt by shall hold the proceeds of the check delivered to Escrow Agent for the Deposit, in escrow, in an interest- bearing account maintained at Astoria Federal Savings Bank, located at Bayshore, New York;
b. The Deposit shall be held by the Escrow Agent until the Closing or sooner termination of this Contract and Escrow Agent shall pay over the Initial Deposit paid by Buyer to be applied interest or income earned thereon, if any, to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit party entitled to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with Deposit. The party receiving such interest or income shall pay any income taxes due thereon. If for any reason the terms and Closing does not occur pursuant to the provisions of this Agreement. Contract and either party makes a written demand upon Escrow Agent, in the manner required for notices, for payment of the Deposit, then Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein give written notice, in accordance with the provisions of this Agreement, it being expressly understood that section 21 to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment of the Deposit pursuant to the aforesaid demand within ten (10) days after the delivery of such notice by acceptance of this AgreementEscrow Agent, Escrow Agent is acting hereby authorized to make such payment in accordance with the capacity aforesaid demand. If Escrow Agent receives written objection from the other party to the proposed payment of a depository only and shall not be liable the Deposit pursuant to the aforesaid demand within such ten (10) day period or responsible to anyone if for any damages, losses or expenses unless same other reason Escrow Agent in good faith shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected herebyelect not to make such payment, Escrow Agent shall refuse continue to comply with any such claims hold the Deposit until otherwise directed by written instructions from Seller and Purchaser or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition a final judgment of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected herebyjurisdiction. Escrow Agent, or (b) all differences however, shall have been adjusted by agreement between Seller and Buyerthe right at anytime to deposit the Deposit with the Clerk of any Court of competent jurisdiction in the State of New York, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice of such deposit to the other party (Seller and the “Notified Party”). If within five (5) business days after the giving of Purchaser, and upon such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Partydeposit being made, Escrow Agent shall comply with the Escrow Demandbe discharged from all obligations and responsibilities hereunder. If The parties acknowledge that Escrow Agent does receive written objection from is acting solely as a stakeholder at their request and for their benefit.
c. Seller represents that its Federal Employer Identification Number is 11-2166744; and Purchaxxx xxxxxxents its Federal Employer Identification Number is 20-2027842. xxxxx xx xxecuted and delivered by Seller and Purchaser on the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminateClosing Date.
Appears in 1 contract
Samples: Acquisition Agreement (Dionics Inc)
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent (a) Concurrently with delivery of the Initial Deposit paid by Buyer to be applied to balance of the Purchase Price under due at Closing, the terms hereofDeposit shall be refunded to Purchaser. The party entitled to the Deposit shall be charged with all income on any earnings on the Deposit and shall receive any such earnings. Purchaser represents and warrants to Escrow Agent agrees and Seller that its taxpayer identification number is correctly set forth below its signature.
(b) If for any reason the Closing does not occur on or prior to holdthe Closing Date, keep and deliver the Initial Depositor this Agreement is terminated, and the Additional Deposit to the extent received by either party makes a written demand upon Escrow Agent as provided in Section 1.04(a) hereof, for payment of the Deposit in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, then Escrow Agent shall give written notice as provided in this Agreement to the other party (the “Notified Party”)of such demand. If Escrow Agent does not receive a written objection from the other party to the demand for the Deposit within five (5) business days after the giving of such noticedate when notice is deemed given as provided in this Agreement, Escrow Agent does not receive any written objection to is hereby authorized deliver the Escrow Demand from the Notified Party, Escrow Agent shall comply Deposit in accordance with the Escrow Demandsuch demand. If Escrow Agent does receive such written objection from the Notified Party in a timely manner as aforesaidwithin such five (5) business day period, Escrow Agent shall take no further action continue to hold the Deposit until the dispute between otherwise directed by written instructions from the parties has been resolved pursuant to either clause this Agreement or a final nonappealable judgment of a court of competent jurisdiction. Escrow Agent shall have the right at any time to deposit the Escrow Funds with the Clerk of Court of Suffolk County, New York, and Escrow Agent shall give written notice of such deposit to Seller and Purchaser.
(ac) Escrow Agent shall not be or (b) above, provided, however, become liable in any way or to any person for its refusal to comply with adverse claims and demands being made for the Deposit. Escrow Agent shall not be responsible for any act or failure to act on its part nor shall it have any liability under this Agreement or in connection herewith except in the case of clause its own willful default or gross negligence. This Agreement shall terminate and Escrow Agent shall be automatically released from all obligation, responsibility and liability hereunder upon Escrow Agent's delivery or deposit of the Deposit in accordance with the provisions of this Agreement.
(a)d) It is expressly understood that Escrow Agent acts hereunder as a stakeholder for the convenience and accommodation of the parties hereto and as a depository only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of any instrument received by or deposited with it, or for the form of execution of such instruments, or for the identity, authority or right of any person executing or depositing the same, or for the terms and conditions of any instrument pursuant to which Escrow Agent may bring an appropriate action act.
(e) The duties of Escrow Agent are purely ministerial. Escrow Agent shall not have any duties or proceeding for leave responsibilities except those set forth in this Agreement and shall not incur any liability in acting upon any signature, notice, request, waiver, consent, receipt or other paper or document believed by Escrow Agent to deposit said monies into be genuine, and Escrow Agent may assume that any person purporting to give it any notice on behalf of any party in accordance with the provisions hereof has been duly authorized to do so.
(f) Escrow Agent may act or refrain from acting in respect of any matter referred to herein in full reliance upon and by and with the advice of counsel which may be selected by it.
(g) Seller and Purchaser hereby jointly and severally agree to indemnify and save Escrow Agent harmless from any and all loss, damage, claim, liability, judgment and other cost and expense of every kind and nature which may be incurred by Escrow Agent by reason of its acceptance of, and its performance under, this Agreement (including, without limitation, reasonable attorneys' fees, disbursements and court costs) except in the case of competent jurisdiction pending such adjudication its own willful default or gross negligence.
(h) Upon delivery of the Deposit in accordance with this Agreement, Purchaser and to submit such resolution of such dispute to such court by action of interpleader, whereupon Seller hereby release Escrow Agent’s obligations hereunder shall terminateAgent from all obligation and liability hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Home Properties of New York Inc)
Escrow Provisions. A. The parties hereby appoint Xxxxxxx Ortoli Xxxxxx-Xxxx Xxxxxxxxxx LLP as Escrow Agent hereby acknowledges receipt by under this Agreement and agree to pay the Escrow Agent a fee of US$2,500 for all services as Escrow Agent related to all subscriptions being made in this placement (“Escrow Agent’s Fee”). The Escrow Agent’s Fee shall be paid directly from the proceeds of the Initial Deposit paid by Buyer sale of the Notes. The parties hereby agree to be applied establish an escrow account with the Escrow Agent whereby the Escrow Agent shall, subject to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement, distribute the Funds received hereby.
B. The Escrow Agent shall release the funds upon delivery to the Lender of the Note and Warrants. If the Escrow Agent receives any funds hereunder after the Initial Closing from a Lender, but does not receive a Note as set out hereunder to send to such Lender within two weeks of receipt of the funds, the Escrow Agent may return the funds to such Lender less any wire fees and such Lender’s pro-rata portion of the Escrow Fee.
C. The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be entitled to personally liable for any fees or compensation for its services hereunder. act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting in good faith and in the absence of gross negligence, fraud and willful misconduct, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s attorneys-at-law shall be liable only to hold said sums conclusive evidence of such good faith, in the absence of gross negligence, fraud and deliver willful misconduct.
D. The Escrow Agent’s responsibilities as Escrow Agent hereunder shall terminate if the same Escrow Agent resigns by giving written notice to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow AgentBorrower. In the event of any disagreement between Buyer such resignation, the parties shall appoint a successor Escrow Agent and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse deliver to comply with any such claims or demands so long as such disagreement may continue. In so refusing, successor Escrow Agent shall make no delivery or other disposition of any of the monies escrow funds then held by it the Escrow Agent hereunder.
E. The Company and the Purchaser hereby waive any conflict that may exist from the Escrow Agent representing the Company and from the Escrow Agent’s ability to pay itself from the Funds for amounts due under the terms this Agreement and outside of this Agreement, .
F. It is understood and in so doing agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the escrow funds held by the Escrow Agent shall not become liable hereunder, the Escrow Agent is authorized and directed in the Escrow Agent’s sole discretion (1) to retain in the Escrow Agent’s possession without liability to anyone for all or any part of said escrow funds until such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants disputes shall have been finally adjudicated in settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction of after the monies involved herein time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or affected herebydefend any such proceedings, or (b2) to deliver the escrow funds and any other property and documents held by the Escrow Agent hereunder to a state or Federal court having competent subject matter jurisdiction and located in the State of New York.
G. The parties hereto agree, jointly and severally, to indemnify and hold harmless the Escrow Agent and its partners, employees, agents and representatives from any and all differences claims, liabilities, costs or expenses in any way arising from or relating to the duties or performance of the Escrow Agent hereunder or the transactions contemplated hereby or by the Subscription Agreement other than any such claim, liability, cost or expense to the extent the same shall have been adjusted determined by agreement between Seller and Buyerfinal, and Escrow Agent shall have been notified in writing unappealable judgment of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution have resulted from the gross negligence, fraud or willful misconduct of such dispute to such court by action of interpleader, whereupon the Escrow Agent’s obligations hereunder shall terminate.
Appears in 1 contract
Escrow Provisions. By executing the Receipt as provided herein, Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to on the Purchase Price of the Property under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, said Deposit and the Additional Deposit all other sums delivered to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, it pursuant hereto in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services in holding the Deposit hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Agreement Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall be entitled to refuse to comply with any such claims or demands so long as such disagreement may continue. In ; and in so refusing, refusing Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall be entitled to continue to refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forthhereinafter. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaidmanner, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), . Further Escrow Agent may bring an shall have the right at all times to pay all sums held by it (i) unless a dispute between or among the parties hereto as arisen, to the appropriate action party under the terms hereof, or proceeding for leave to deposit said monies (ii) into any court of competent jurisdiction pending such adjudication and to submit such resolution of such after a dispute to such court by action of interpleaderbetween or among the parties hereto has arisen, whereupon Escrow Agent’s obligations hereunder shall terminate. Notwithstanding the foregoing to the contrary, in the event Buyer timely exercises Buyer’s right to terminate this Agreement pursuant to Section 6.02 hereof prior to the expiration of the Inspection Period and Buyer delivers an Escrow Demand together with a copy of Buyer’s termination notice pursuant to Section 6.02, Escrow Agent shall give written notice hereof to Seller, disburse the Deposit to Buyer, and Seller shall not have any right to object thereto. Seller and Buyer jointly and severally agree to indemnify and hold harmless said Escrow Agent from any and all costs, damages and expenses, including reasonable attorneys’ fees, that said Escrow Agent may incur in its compliance of and in good faith with the terms of this Agreement; provided, however, this indemnity shall not extend to any act of negligence or malfeasance on the part of the Escrow Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Berkshire Income Realty Inc)
Escrow Provisions. (a) The Title Company (hereinafter referred to as the “Escrow Agent”) shall hold the Xxxxxxx Money in escrow in an interest-bearing bank account (the “Escrow Account”) at the direction of Purchaser.
(b) The Escrow Agent hereby acknowledges receipt by shall hold the Xxxxxxx Money in escrow in the Escrow Agent Account until the Closing or sooner termination of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep this Agreement and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, shall hold or apply such proceeds in accordance with the terms and provisions of this AgreementSection 14.15(b). Seller and Purchaser understand that no interest is earned on the Xxxxxxx Money during the time it takes to transfer into and out of the Escrow Account. At Closing, the Xxxxxxx Money shall be paid by the Escrow Agent shall to, or at the direction of, Seller. If for any reason the Closing does not be entitled to any fees or compensation for its services hereunder. occur and either party makes a written demand upon the Escrow Agent (a copy of which shall be liable only to hold said sums and deliver the same given to the parties named herein in accordance with other party) for payment of such amount, the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damagesshall, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall within 24 hours give written notice to the other party of such demand (provided, however, that prior to the “Notified Party”expiration of the Feasibility Period, Escrow Agent shall promptly and without further action refund the Xxxxxxx Money to Purchaser following written demand therefor by Purchaser (with a copy given to Seller)). If the Escrow Agent does not receive a written objection within five (5) business days after the giving of any such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such five (5) business day period or if for any other reason the Notified Party Escrow Agent in a timely manner as aforesaidgood faith shall elect not to make such payment, the Escrow Agent shall take no further action continue to hold such amount until the dispute between otherwise directed by joint written instructions from the parties has been resolved pursuant to either clause (a) this Agreement or (b) above, provided, however, in the case a final judgment of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any a court of competent jurisdiction. However, the Escrow Agent shall have the right at any time to deposit the Xxxxxxx Money with the registry of the Court of the jurisdiction pending such adjudication and consented to submit such resolution by the Parties. The Escrow Agent shall give written notice of such dispute deposit to Seller and Purchaser. Upon such court by action deposit the Escrow Agent shall be relieved and discharged of interpleaderall further obligations and responsibilities hereunder.
(c) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, whereupon that the Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or omission on its part, other than for its gross negligence or willful misconduct. Seller and Purchaser shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including, without limitation, attorneys’ fees and disbursements, incurred in connection with the performance of the Escrow Agent’s obligations hereunder shall terminateduties hereunder.
(d) The Escrow Agent has acknowledged its agreement to these provisions by signing this Agreement in the place indicated following the signatures of Seller and Purchaser.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Texas Pacific Land Trust)
Escrow Provisions. The Deposit and any other sums (including, without limitation, any interest earned thereon) which the parties agree shall be held in escrow (herein collectively called the "Escrow Agent hereby acknowledges receipt Deposits"), shall be held by the Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdAgent, keep and deliver the Initial Depositin trust, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, disposed of only in accordance with the terms following provisions:
(a) The Escrow Agent shall invest the Escrow Deposits in government insured interest-bearing instruments reasonably satisfactory to both Buyer and Seller, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, and shall promptly provide Buyer and Seller with confirmation of the investments made. Any interest earned on the Deposit shall be considered a part of the Deposit.
(b) If the Closing occurs, the Escrow Agent shall deliver the Escrow Deposits to, or upon the instructions of, Seller on the Closing Date.
(c) If for any reason the Closing does not occur, the Escrow Agent shall deliver the Escrow Deposits to Seller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions of this AgreementSubsection (c). If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any payment of the monies then held by it under Escrow Deposits, the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within five ten (510) business days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such period, the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action continue to hold such amount until otherwise directed by written instructions signed by Seller and Buyer or a final judgment of a court.
(d) The parties acknowledge that the dispute between Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and that the Escrow Agent shall not be liable to either of the parties for any action or omission on its part taken or made in good faith, and not in disregard of this Agreement, but shall be liable for its negligent acts and for any Liabilities (including reasonable attorneys' fees, expenses and disbursements) incurred by Seller or Buyer resulting from the Escrow Agent's mistake of law respecting the Escrow Agent's scope or nature of its duties. Seller and Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all Liabilities (including reasonable attorneys' fees, expenses and disbursements) incurred in connection with the performance of the Escrow Agent's duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.
(e) Buyer shall pay any income taxes on any interest earned on the Escrow Deposits. Buyer represents and warrants to the Escrow Agent that its taxpayer identification number is 00-0000000.
(f) The Escrow Agent has been resolved executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Agent has received and shall hold the Escrow Deposits in escrow, and shall disburse the Escrow Deposits pursuant to either clause (a) or (b) above, provided, however, in the case provisions of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminatethis Article 13.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Capital Lease Funding Inc)
Escrow Provisions. By executing the Receipt as provided herein, Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to on the Purchase Price of the Property under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, said Deposit and the Additional Deposit all other sums delivered to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, it pursuant hereto in accordance with the terms and provisions of this Agreement. Upon receipt from Buyer of the Deposit, Escrow Agent shall invest the Deposit in an interest-bearing account or money market fund acceptable to Buyer and Seller. At the Closing, Escrow Agent shall release the Deposit to Seller, which Deposit shall be credited against the balance of the Purchase Price owed by Buyer to Seller. Escrow Agent shall not be entitled to any fees or compensation for its services in holding the Deposit hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Agreement Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall be entitled to refuse to comply with any such claims or demands so long as such disagreement may continue. In ; and in so refusing, refusing Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall be entitled to continue to refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forthhereinafter. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaidmanner, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), . Further Escrow Agent may bring an shall have the right at all times to pay all sums held by it (i) to the appropriate action party under the terms hereof, or proceeding for leave to deposit said monies (ii) into any court of competent jurisdiction pending such adjudication and to submit such resolution of such after a dispute to such court by action of interpleaderbetween or among the parties hereto has arisen, whereupon Escrow Agent’s obligations hereunder shall terminate. Notwithstanding the foregoing to the contrary, in the event Buyer timely exercises Buyer’s right to terminate this Agreement pursuant to Section 6.02 hereof prior to the expiration of the Inspection A/72401704.6 Period and Buyer delivers an Escrow Demand together with a copy of Buyer’s termination notice pursuant to Section 6.02 prior to the expiration of the Inspection Period, Escrow Agent shall give written notice thereof to Seller, disburse the Deposit to Buyer and Seller shall not have any right to object thereto. Seller and Buyer jointly and severally agree to indemnify and hold harmless said Escrow Agent from any and all costs, damages and expenses, including reasonable attorneys’ fees, that said Escrow Agent may incur in its compliance of and in good faith with the terms of this Agreement; provided, however, this indemnity shall not extend to any act of gross negligence or willful malfeasance on the part of the Escrow Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Berkshire Income Realty Inc)
Escrow Provisions. Escrow Agent 8.1 The Company and Investor hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by appoint Escrow Agent as provided escrow agent for the Notes being sold by the Noteholders to the Investor pursuant to the Omnibus Agreement, warrant certificates being delivered by the Noteholders for cancellation by the Company (the "Noteholder Warrants") in Section 1.04(aconnection with the sale to the Investor of the Notes, certificates for the Common Stock being issued to the Noteholders in connection with the sale of the Notes (the "Noteholder Stock Certificates") hereof, and the purchase price for the Notes (the "Notes Purchase Price") to be paid by the Investor in accordance with the terms and provisions conditions set forth in the Omnibus Agreement and herein, and the Escrow Agent hereby accepts such appointment.
8.2 Upon receipt of all of the Notes, Noteholder Warrants (or other instruments which the investor shall have given written notice to the Escrow Agent are acceptable to the Investor) and Noteholder Stock Certificates in connection with the sale of the Notes to the Investor, the Escrow Agent shall promptly deliver to each of the Noteholders, by check or wire transfer, the amount of the Notes Purchase Price to which such Noteholder shall be entitled as set forth in Exhibit G. In the event that the Company fails to deliver to the Escrow Agent prior to June 30, 2005 any one or more of the Notes, the Noteholder Warrants or the Noteholder Stock Certificates, upon receipt of written notice from the Investor, the Escrow Agent shall return the Notes Purchase Price to the Investor, the appropriate Notes and Noteholders Warrant to each Noteholder to the address set forth on Exhibit G and the Noteholders Stock to the transfer agent of the Company for cancellation. Alternatively, at the option of the Investor, the Investor may direct the Escrow Agent by written notice prior to June 30, 2005 to deliver to the Investor the appropriate Notes, to deliver to the Company for cancellation the appropriate Noteholder Warrants and to deliver to each Noteholder the appropriate Noteholder Stock Certificate and the appropriate portion of the Notes Purchase Price as set forth on Exhibit G in order to effectuate the sale to the Investor of some, but less than all of the Notes. In such event, the Escrow Agent shall return only the unpaid Notes Purchase Price to the Investor, the unsold Notes and uncancelled Noteholders Warrants to each Noteholder who has not sold his Note to the address set forth on Exhibit G for such Noteholder and the Noteholders Stock Certificates that were to be delivered to the Noteholders upon sale of their Notes to the transfer agent of the Company for cancellation.
8.3 Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. Escrow Agent shall be under no liability to the other parties hereto, or to anyone else, by reason of any failure, on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person, to perform such person's obligations under any such document. Except for amendments to this Agreement. Agreement relating to escrowed funds or documents or instruments, the Escrow Agent shall not be entitled obligated to recognize any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums agreement between any and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any all of the monies then held by persons referred to herein, notwithstanding that references hereto may be made herein and whether or not it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. has knowledge thereof.
8.4 Escrow Agent shall not be required liable to disburse any party or anyone else for any action taken, or omitted to be taken by it, or any action suffered by it to be taken or omitted, in good faith and acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent) statement, instrument, report, or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any of the monies held terms thereof, unless evidenced by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with writing delivered to the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer signed by the proper party or Seller (parties and, if the “Notifying Party”) of any notice duties or request (the “Escrow Demand”) to perform any act or disburse any portion rights of the monies held by Escrow Agent under the terms of this Agreementare affected, unless it shall give its prior written consent thereto.
8.5 Escrow Agent shall give not be responsible for the sufficiency or accuracy of the form, or of the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein; nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights, of the person executing or delivering or purporting to execute or deliver any document or property or this Agreement. The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent to the Company, the Investor or the Noteholders pursuant to the provisions hereof.
8.6 Escrow Agent shall have the right to assume, in the absence of written notice to the contrary from the proper person or persons, that a fact or an event, by reason of which an action would or might be taken by the Escrow Agent, does not exist or has not occurred, without incurring liability to the other party (parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to betaken or omitted, in good faith and in the “Notified Party”). If within five (5) business days after the giving exercise of its own best judgment, in reliance upon such notice, assumption.
8.7 Escrow Agent does not receive any written objection to will be indemnified and held harmless by the Investor and the Company from and against all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Demand from Agent in connection with any action, suit or proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Agreement, the Notified Party, services of the Escrow Agent shall comply with the Escrow Demand. If hereunder, except for claims relating to willful misconduct or gross negligence by Escrow Agent or breach of this Agreement by Escrow Agent, or the monies or other property held by it hereunder. EXHIBIT E FORM OF PROMISSORY NOTE AND SECURITY AGREEMENT ASSIGNMENT PROMISSORY NOTE AND SECURITY AGREEMENT ASSIGNMENT For Value Received, each of the undersigned (each an "Assignor" and collectively the "Assignors") does receive written objection from the Notified Party in hereby sell, assign, transfer and convey unto Stellar McKim LLC, a timely manner as aforesaidDelaware limited liability company (hereinafter callxx xxe "Assignee"),its successors and assigns all right, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant title and interest of Assignor to either clause (a) or (b) aboveand under that certain Series I Convertible Secured Promissory Note, provideddated July 26, however2001, in the case original principal amount listed opposite the name of clause the Assignor on Schedule A attached hereto (aeach a "Note"), Escrow Agent may bring an appropriate action or proceeding for leave made by BrightStar Information Technology Services, Inc. ("Maker") and payable to deposit said monies into the order of Assignor (the original copy of which is being delivered to Assignee herewith). Each Assignor further does hereby assign, transfer and convey to Assignee all of the Assignor's rights under that certain Security Agreement dated July 26, 2001 by Maker, BrightStar Information Technology Group, Inc. ("Brightstar"), Software Innovators, Inc. ("SII"), Software Consulting Services America, Inc. ("SCSAI") and Brian R. Blackmarr & Associates, Inc. ("Blackmarr") in favor of Axxxxxxxx (xxx "Xxxurity Agreement"). Xx xxxcuting this Assignment, each of Maker, Brightstar, SII, and SCSAI (Blackmarr was liquidated in 2002 and is no longer in existence) hxxxxx xxxsents to the assignment of the Notes and the Assignors' rights under the Security Agreement, agrees to make any court of competent jurisdiction pending such adjudication and all future payments on the Notes to submit such resolution of such dispute to such court by action of interpleaderthe Assignee, whereupon Escrow Agent’s obligations hereunder its successors and assigns and agrees that Assignee shall terminatebe treated as the Secured Party under the Security Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Brightstar Information Technology Group Inc)
Escrow Provisions. Escrow Agent hereby acknowledges receipt A. Seller and Purchaser are parties to that certain “Real Estate Contract” dated January 23, 2018 (the “Contract”) pursuant to which Seller has agreed to sell to Purchaser and Purchaser has agreed to purchase from Seller, the real property described on Exhibit “A” attached hereto and incorporated herein by Escrow Agent of referenced (the Initial Deposit paid by Buyer “Property”).
B. Pursuant to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of the Contract and concurrently with the execution of this Agreement. : (i) Seller has executed and delivered to Escrow Agent that certain “Deed”, a copy of which is attached to this Agreement as Exhibit “B” and is incorporated herein by reference (the “Deed”); and (ii) Purchaser has delivered to Escrow Agent the sum of Five Hundred Thousand and No/100 Dollars ($500,000.00) in readily available funds (the “Deposit”).
C. The Contract Parties hereby agree as follows and instruct the Escrow Agent as follows with respect to the Deed: (i) if all conditions to the closing under the Contract are satisfied, Seller will provide to the Escrow Agent Seller’s written authorization to release and record the Deed; or (ii) if Seller delivers to Purchaser and the Escrow Agent a written notice that the Contract has been terminated for any reason, then Escrow Agent shall immediately deliver the Deed to Seller.
D. The Contract Parties hereby agree as follows and instruct the Escrow Agent as follows with respect to the Deposit: (i) the Deposit must be placed in an interest bearing account approved by the Contract Parties and all accrued interest will be added to and become a portion of the Deposit; (ii) Purchaser will have the right to draw upon the Deposit with Seller’s written approval, which will not be entitled unreasonably withheld so long as Purchaser provides evidence reasonably acceptable to any fees Seller that the remainder of the “Work” (as that term is defined in the Contract, and herein so called) can be completed at a total expense of $400,000.00 or compensation less and so long as at least $100,000.00 is retained in the Deposit until the closing under the Contract; (iii) with each request for its services hereunder. a disbursement from the Deposit, Purchaser will provide to Escrow Agent shall and to Seller: (1) written confirmation from Purchaser’s engineer that (a) the remainder of the Work can be liable only to hold said sums and deliver completed for a total expense that is a least $100,000.00 less than the same to amount that will remain in the parties named herein Deposit after the requested disbursement is made, (b) all of the Work has been conducted in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting “Final Plans” (as defined in the capacity Contract and herein so called) and in compliance with all applicable laws, (2) copies of a depository only and shall not be liable invoices or responsible other evidence of payment sufficient to anyone for any damagesestablish the expenditures incurred by Purchaser, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or (3) conditional lien waivers for the monies involved herein or affected hereby, Escrow Agent shall refuse invoices to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any be paid out of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain current disbursement from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminate.the
Appears in 1 contract
Samples: Escrow Agreement
Escrow Provisions. The Deposit and any other sums (including any interest earned thereon) which the parties agree shall be held in escrow (collectively “Escrow Funds”), shall be held by Escrow Agent, in trust and disposed of only in accordance with the following provisions:
(a) Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent xxxxxx agrees to hold, keep and deliver the Initial Depositadminister, and disburse the Additional Deposit Escrow Funds pursuant to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not invest such Escrow Funds in a segregated, interest-bearing money market account at Citibank, N.A., as provided in Section 3.2 and such Escrow Funds shall, unless otherwise expressly set forth herein, be held at such banking institution until disbursed as provided herein, and all such disbursements shall be made to the appropriate payees directly from such banking institution. In the event any interest or other income shall be earned on such Escrow Funds, such interest or other income shall become a part of the Escrow Funds and will be the property of the party entitled to any fees the Deposit pursuant to this Agreement. Purchaser’s and Seller’s Federal Identification Numbers are set forth below.
(b) At such time as Escrow Agent receives written notice from either Purchaser or compensation for its services hereunder. Seller, or both, setting forth the identity of the party to whom such Escrow Funds (or portions thereof) are to be disbursed and further setting forth the specific section or paragraph of the Agreement pursuant to which the disbursement of such Escrow Funds (or portions thereof) is being requested, Escrow Agent shall be liable only disburse such Escrow Funds pursuant to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreementsuch notice; provided, it being expressly understood however, that if such notice is given by acceptance of this Agreementeither Purchaser or Seller but not both, Escrow Agent is acting in shall (i) promptly notify the capacity other party (either Purchaser or Seller as the case may be) that Escrow Agent has received a request for disbursement, and (ii) withhold disbursement of such Escrow Funds for a depository only period of ten (10) days after receipt of such notice of disbursement and if Escrow Agent receives written notice from either Purchaser or Seller within said ten (10) day period which notice countermands the earlier notice of disbursement, then Escrow Agent shall withhold such disbursement until both Purchaser and Seller can agree upon a disbursement of such Escrow Funds. Purchaser and Seller hereby agree to send to the other, pursuant to Section 15.6 below, a duplicate copy of any written notice sent to Escrow Agent and requesting any such disbursement or countermanding a request for disbursement.
(c) In performing any of its duties hereunder, Escrow Agent shall not be liable or responsible incur any liability to anyone for any damages, losses losses, or expenses unless same shall have been caused by the expenses, except for willful default, gross negligence or willful malfeasance breach of trust, and it shall accordingly not incur any such liability with respect to (i) any action taken or omitted in good faith upon advice of its legal counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, or Purchase and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Sale Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminate.Des Xxxxx Corners
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cohen & Steers Income Opportunities REIT, Inc.)
Escrow Provisions. The Deposit and any other sums (including, without limitation, any interest earned thereon) which the parties agree shall be held in escrow (herein collectively called the “Escrow Agent hereby acknowledges receipt Deposits”), shall be held by the Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdAgent, keep and deliver the Initial Depositin trust, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, disposed of only in accordance with the terms following provisions:
(a) The Escrow Agent shall invest the Escrow Deposits in government insured interest-bearing instruments reasonably satisfactory to Purchaser, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, and shall promptly provide Purchaser with confirmation of the investments made. Any interest earned on the Deposit shall be considered a part of the Deposit.
(b) If the Closing occurs, the Escrow Agent shall deliver the Escrow Deposits to, or upon the instructions of, Seller on the Closing Date.
(c) If for any reason the Closing does not occur, the Escrow Agent shall deliver the Escrow Deposits to Seller or Purchaser only upon receipt of a written demand therefor from such party, subject to the following provisions of this AgreementSubsection (c). If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any payment of the monies then held by it under Escrow Deposits, the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within five ten (510) business days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such period, the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action continue to hold such amount until otherwise directed by written instructions signed by Seller and Purchaser or a final judgment of a court.
(d) The parties acknowledge that the dispute between Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and that the Escrow Agent shall not be liable to either of the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate for any action or proceeding omission on its part taken or made in good faith, and not in disregard of this Agreement, but shall be liable for leave to deposit said monies into its negligent acts and for any court of competent jurisdiction pending such adjudication liabilities (including reasonable attorneys’ fees, expenses and to submit such resolution of such dispute to such court disbursements) incurred by action of interpleader, whereupon Seller or Purchaser resulting from the Escrow Agent’s obligations hereunder mistake of law respecting the Escrow Agent’s scope or nature of its duties. Seller and Purchaser shall terminatejointly and severally indemnify and hold the Escrow Agent harmless from and against all liabilities (including reasonable attorneys’ fees, expenses and disbursements) incurred in connection with the performance of the Escrow Agent’s duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.
(e) The Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Agent has received and shall hold the Escrow Deposits in escrow, and shall disburse the Escrow Deposits pursuant to the provisions of this Section 13.
7. The signature block of the Escrow Agent is hereby deleted in its entirety and replaced by the following: By:____________________________ Name: Title:
8. Except as specifically amended by the foregoing, all of the terms, conditions, covenants and agreements in the Agreement shall remain unaltered and of full force and effect. In the event of any conflict or inconsistency between the terms and provisions set forth in the Agreement and the terms and provisions set forth in this Amendment, the terms and provisions set forth herein shall control.
9. This Amendment shall be governed and construed according to the laws of the State of New York. This Amendment shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors and assigns.
10. This Amendment may be executed in one or more counterparts, each of which shall be deemed to be an original as to any party whose signature appears thereon, and all of which when taken together shall constitute one and the same instrument. The parties agree to accept and rely on facsimile copies of signatures on this Amendment as originals.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Capital Lease Funding Inc)
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement11.01. Escrow Agent shall not be entitled liable to any fees party for any act or compensation omission except for its services hereunder. bad faith or gross negligence, and the parties agree to indemnify Escrow Agent shall be liable only to and hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for harmless from any claims, damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made arising in connection with or herewith. The parties acknowledge that Xxxxxx Agent is acting solely as a stakeholder for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties heretotheir convenience. Escrow Agent shall not be required to disburse defend any legal proceedings which may be instituted against it with respect to the escrowed funds, the Property or the subject matter of the monies held by it under this Agreement unless requested to do so by Seller and Xxxxx and indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal action or proceedings of any kind or nature and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectability of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with either a joint any written instruction of Buyer instructions given to it hereunder and Seller or an undisputed believed by it to be signed by the proper parties.
Section 11.02. All interest accruing on the Deposit shall follow the Deposit. The parties hereto shall provide Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance Agent with their respective tax identification numbers at the provisions hereinafter set forthtime the Deposit is tendered to Escrow Agent.
Section 11.03. Upon receipt by Escrow Agent of a written notice from either Buyer or Seller (party to disburse the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this AgreementDeposit, Escrow Agent shall give ten (10) days’ notice to both parties before delivering the Deposit to any party (except at Closing) and shall release the Deposit upon the expiration of said ten (10) day period, provided neither party has delivered notice to Escrow Agent in accordance with this Section prior to expiration of said period.
Section 11.04. In the event Escrow Agent receives written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written an objection to the Escrow Demand from release of the Notified PartyDeposit, Escrow Agent shall comply not release or deliver the Deposit to either party but shall either continue to hold the Deposit until otherwise directed in a writing signed by Xxxxx and Seller, or by order of a court of competent jurisdiction or shall deposit the Deposit with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case clerk of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending in the State of Georgia. Upon such adjudication deposit, Escrow Agent will be released from all duties and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminateresponsibilities hereunder.
Appears in 1 contract
Samples: Agreement of Sale
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, Deposit and the Additional Deposit all other sums delivered to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to not comply with any such claims or demands so long as such disagreement may continue. In so refusing, and, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusalactions; and Escrow Agent shall be entitled to continue to refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “"Notifying Party”") of any notice or request (the “"Escrow Demand”") to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “"Notified Party”"). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a). Further, Escrow Agent may bring an shall have the right at all times to pay all sums held by it (i) to the appropriate action party with the written consent of Buyer and Seller, or proceeding for leave to deposit said monies (ii) into any court of competent jurisdiction pending such adjudication and to submit such resolution of such after a dispute to such court by action of interpleaderbetween or among the parties hereto has arisen, whereupon Escrow Agent’s 's obligations hereunder shall terminate.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Berkshire Income Realty Inc)
Escrow Provisions. The Escrow Agent hereby acknowledges receipt by will hold the aforementioned deposit and shall return or release the deposit in accordance with the terms of this Agreement, upon judicial decree or the delivery to the Escrow Agent of a mutual declaration signed by the Initial Deposit paid by Buyer Reserving Party and Sponsor directing the Escrow Agent to act. Escrow Agent shall have no obligation or liability hereunder except as a depositary to retain the cash which may be applied deposited with it hereunder and to dispose of the Purchase Price under same in accordance with the terms hereof. Escrow Agent agrees shall be entitled to hold, keep rely and deliver the Initial Deposit, and the Additional Deposit to the extent act upon any written instrument received by it from either party. Upon disposition by Escrow Agent as provided in Section 1.04(a) hereofAgent, in accordance with the terms hereof, of the funds deposited with or retained by Escrow Agent hereunder, Escrow Agent shall be fully and provisions finally released and discharged from any and all duties, obligations, and liabilities hereunder. The Escrow Agent’s sole liability hereunder shall be to hold the Deposit, to make payments and distributions in accordance with the terms of this Escrow Agreement, and otherwise to discharge its obligations hereunder. Escrow Agent shall not be entitled liable for any act performed in good faith or in reliance on any document instrument or statement believed by it to any fees or compensation for its services hereunderbe genuine. The Re- serving Party and Sponsor jointly and severally agree to indemnify and hold harmless Escrow Agent from all losses, costs and expenses that may be incurred as a result of its involvement in any litigation, including, but not limited to, attorneys fees, arising from the performance of its duties hereunder, provided that such losses, costs and expenses shall be liable only to hold said sums and deliver not have resulted from any action taken or omitted by the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same which it shall have been caused by the gross negligence adjudged grossly negli- gent or engaged in willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminatemisconduct.
Appears in 1 contract
Samples: Reservation Agreement
Escrow Provisions. The Base Building Deposit shall be held by the Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdAgent, keep and deliver the Initial Depositin trust, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, disposed of only in accordance with the terms following provisions:
(a) The Escrow Agent shall invest the Base Building Deposit in government insured interest-bearing instruments reasonably satisfactory to both Buyer and Seller, shall not commingle the Base Building Deposit with any funds of the Escrow Agent or others, and shall promptly provide Buyer and Seller with confirmation of the investments made.
(b) If the Closing occurs, the Escrow Agent shall deliver the Base Building Deposit to, or upon the instructions of, Seller on the Closing Date and as a credit against the Purchase Price.
(c) If for any reason the Closing does not occur, the Escrow Agent shall deliver the Base Building Deposit to Seller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions of this AgreementSubsection (c). If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any payment of the monies then held by it under Base Building Deposit, the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within five ten (510) business days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such period, the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action continue to hold such amount until otherwise directed by written instructions signed by Seller and Buyer or a final judgment of a court.
(d) The parties acknowledge that the dispute between Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and that the Escrow Agent shall not be liable to either of the parties has been resolved pursuant to either clause (a) for any action or (b) aboveomission on its part taken or made in good faith, providedand not in willful disregard of this Agreement, howeverbut shall be liable for its gross negligence, in willful misconduct and bad faith. Seller and Buyer shall jointly and severally indemnify and hold the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court harmless from and against all Liabilities (including reasonable attorneys’ fees, expenses and disbursements) incurred in connection with the performance of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon the Escrow Agent’s obligations duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in bad faith, in willful disregard of this Agreement or involving gross negligence on the part of the Escrow Agent.
(e) Any interest earned on the Base Building Deposit shall be income of Buyer if paid to Buyer (or released to Seller as part of the Purchase Price) or income of Seller if paid to Seller in connection with the termination of this Agreement as a consequence of a default hereunder by Buyer. Buyer and Seller each represents and warrants to the Escrow Agent that its respective taxpayer identification numbers are as set forth elsewhere in this Agreement.
(f) The Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Agent has received and shall terminatehold the Base Building Deposit in escrow, and shall disburse the Base Building Deposit pursuant to the provisions of this Article 14 and the other terms of this Agreement. The provisions of this Article 14 shall survive the Closing (and not be merged therein) or earlier termination of this Agreement.
Appears in 1 contract
Escrow Provisions. The Escrow Agent hereby acknowledges receipt by will hold the Reservation Deposit and shall return or release the Reservation Deposit in accordance with the terms of this Agreement, upon judicial decree or the de- livery to the Escrow Agent of a mutual declaration signed by the Initial Deposit paid by Buyer Reserving Party and Developer directing the Escrow Agent to act. Escrow Agent shall have no obligation or liability hereunder except as a depositary to retain the cash which may be applied deposited with it hereunder and to dispose of the Purchase Price under same in accordance with the terms hereof. Escrow Agent agrees shall be entitled to hold, keep rely and deliver the Initial Deposit, and the Additional Deposit to the extent act upon any written instrument received by Escrow Agent as provided in Section 1.04(a) hereofit from the parties. Upon disposition by Xxxxxx Agent, in accordance with the terms and provisions hereof, of this Agreement. the funds deposited with or retained by Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. , Escrow Agent shall be liable only fully and finally released and discharged from any and all duties, obligations, and liabilities hereunder. The Escrow Agent’s sole liability hereunder shall be to hold said sums the Reservation Deposit, to make payments and deliver the same to the parties named herein distributions in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable otherwise to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties heretodischarge its obligations hereunder. Escrow Agent shall not be required to disburse liable for any of the monies held act performed in good faith or in reliance on any document instrument or statement believed by it under this Agreement unless in accordance with either a joint written instruction of Buyer to be genuine. The Reserving Party and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Developer jointly and severally agree to indemnify and hold harmless Escrow Agent from either Buyer all losses, costs and expenses that may be incurred as a result of its involvement in any litigation, including, but not limited to, reasonable attorneys’ fees, arising from the performance of its duties hereunder, provided that such losses, costs and expenses shall not have resulted from any action taken or Seller (omitted by the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent and for which it shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party have been adjudged negligent or engaged in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminatewillful misconduct.
Appears in 1 contract
Samples: Client Reservation Agreement
Escrow Provisions. The Deposit and any other sums (including, without limitation, any interest earned on such other sums) which the parties agree shall be held in escrow (herein collectively called the “Escrow Agent hereby acknowledges receipt Deposits”), shall be held by the Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdAgent, keep and deliver the Initial Depositin trust, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, disposed of only in accordance with the terms following provisions:
(a) The Escrow Agent shall invest the Escrow Deposits in government insured non-interest bearing instruments reasonably satisfactory to both Buyer and Seller, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, and shall promptly provide Buyer and Seller with confirmation of the investments made.
(b) If the XX XX Closing occurs, the Escrow Agent shall deliver the Escrow Deposits to, or upon the instructions of, Seller on the XX XX Closing Date.
(c) If for any reason the XX XX Closing does not occur, the Escrow Agent shall deliver the Escrow Deposits to Seller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions of this AgreementSubsection (c). If for any reason the XX XX Closing does not occur and either party makes a written demand upon the Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any payment of the monies then held by it under Escrow Deposits, the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within five ten (510) business days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such period, the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action continue to hold such amount until otherwise directed by written instructions signed by Seller and Buyer or a final judgment of a court.
(d) The parties acknowledge that the dispute between Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and that the Escrow Agent shall not be liable to either of the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate for any action or proceeding omission on its part taken or made in good faith, and not in disregard of this Agreement, but shall be liable for leave to deposit said monies into its negligent acts and for any court of competent jurisdiction pending such adjudication Liabilities (including reasonable attorneys’ fees, expenses and to submit such resolution of such dispute to such court disbursements) incurred by action of interpleader, whereupon Seller or Buyer resulting from the Escrow Agent’s obligations hereunder shall terminate.mistake of law respecting the Escrow Agent’s scope or nature of
Appears in 1 contract
Samples: Purchase and Sale Agreement (Global Income Trust, Inc.)
Escrow Provisions. The Deposit and any other sums (including, without limitation, any interest earned thereon) which the parties agree shall be held in escrow (herein collectively called the “Escrow Agent hereby acknowledges receipt Deposits”), shall be held by the Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdAgent, keep and deliver the Initial Depositin trust, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, disposed of only in accordance with the terms following provisions:
(a) The Escrow Agent shall invest the Escrow Deposits in government insured interest-bearing instruments reasonably satisfactory to both Buyer and Seller, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, and shall promptly provide Buyer and Seller with confirmation of the investments made.
(b) If the Closing occurs, the Escrow Agent shall deliver the Escrow Deposits to, or upon the instructions of, Seller on the Closing Date.
(c) If for any reason the Closing does not occur, the Escrow Agent shall deliver the Escrow Deposits to Seller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions of this AgreementSubsection (c). If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any payment of the monies then held by it under Escrow Deposits, the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within five ten (510) business days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such period, the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action continue to hold such amount until otherwise directed by written instructions signed by Seller and Buyer or a final judgment of a court.
(d) The parties acknowledge that the dispute between Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and that the Escrow Agent shall not be liable to either of the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate for any action or proceeding omission on its part taken or made in good faith, and not in disregard of this Agreement, but shall be liable for leave to deposit said monies into its negligent acts and for any court of competent jurisdiction pending such adjudication Liabilities (including reasonable attorneys’ fees, expenses and to submit such resolution of such dispute to such court disbursements) incurred by action of interpleader, whereupon Seller or Buyer resulting from the Escrow Agent’s obligations hereunder mistake of law respecting the Escrow Agent’s scope or nature of its duties. Seller and Buyer shall terminatejointly and severally indemnify and hold the Escrow Agent harmless from and against all Liabilities (including reasonable attorneys’ fees, expenses and disbursements) incurred in connection with the performance of the Escrow Agent’s duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.
(e) Buyer shall pay any income taxes on any interest earned on the Escrow Deposits. Buyer represents and warrants to the Escrow Agent that its taxpayer identification number is 20-0000000.
(f) The Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Agent has received and shall hold the Escrow Deposits in escrow, and shall disburse the Escrow Deposits pursuant to the provisions of this Article 13. The provisions of this Article 13 shall survive the Closing (and not be merged therein) or earlier termination of this Agreement.
Appears in 1 contract
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be held and applied to the Purchase Price under in strict accordance with the terms hereofof this Agreement. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, Deposit and the Additional Deposit all other sums delivered to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, it pursuant hereto in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Agreement Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall be entitled to refuse to comply with any such claims or demands so long as such disagreement may continue. In ; and in so refusing, refusing Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall be entitled to continue to refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forthhereinafter. Upon receipt by Escrow Agent from either Buyer or any Seller (the “"Notifying Party”") of any notice or request (the “"Escrow Demand”") to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party parties (the “"Notified Party”Parties"). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the any Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the any Notified Party in a timely manner as aforesaidmanner, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a). Further, Escrow Agent may bring an shall have the right at all times to pay all sums held by it (i) to the appropriate action party under the terms hereof, or proceeding for leave to deposit said monies (ii) into any court of competent jurisdiction pending such adjudication and to submit such resolution of such after a dispute to such court by action of interpleaderbetween or among the parties hereto has arisen, whereupon Escrow Agent’s 's obligations hereunder shall terminate. Seller and Buyer jointly and severally agree to indemnify and hold harmless said Escrow Agent from any and all costs, damages and expenses, including reasonable attorneys' fees, that said Escrow Agent may incur in its compliance of the terms of this Agreement; provided, however, this indemnity shall not extend to any act of gross negligence or willful malfeasance on the part of the Escrow Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Brookdale Senior Living Inc.)
Escrow Provisions. (A) The Deposit shall be held in escrow by the Escrow Agent hereby acknowledges receipt by Escrow Agent until Closing or the sooner termination of this Agreement. The Deposit shall be maintained in an interest-bearing account in a federally insured financial institution within the Washington D.C. metropolitan area. Interest earned on the Deposit shall be deemed part of the Initial Deposit and shall be paid by Buyer to Purchaser or Seller, as may be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereofcase, in accordance with the terms and other provisions of this Agreement.
(B) The Escrow Agent is merely responsible for the safe keeping of the Deposit and shall not be required to determine any questions of fact or law. In the event of a dispute between Purchaser and Seller with respect to the disposition of the Deposit or any interest thereon, the Escrow Agent shall have no obligation to either Purchaser or Seller except to interplead the Deposit, together with any interest, in an appropriate court in the Commonwealth of Virginia, and upon doing so the Escrow Agent shall be relieved of any further obligation as escrowee.
(C) The Escrow Agent may act upon any instrument or other writing believed by it in good faith to be signed and presented by the proper person, and shall not be liable in connection with the performance by it of its duties under this Agreement except for its own negligence or willful misconduct. The Escrow Agent shall not be entitled under any obligation to institute or defend any fees action, suit, or compensation for legal proceeding in connection herewith, or to take any other action likely to involve its services hereunder. expense (except to interplead the Deposit as aforesaid) unless first indemnified to its satisfaction by Purchaser or Seller.
(D) Seller and Purchaser agree that the Escrow Agent shall be liable only have the right to hold said sums disburse the Deposit and deliver any accrued interest thereon at the same to the parties named herein in accordance with the provisions time of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable Closing or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms earlier termination of this Agreement, and that in so doing the event Closing does not occur for any reason, the Deposit and accrued interest thereon shall be given or returned by the Escrow Agent shall not become liable to anyone for such refusal; the Seller or Purchaser, as the case may be, (i) when an "Agreement of Release," in which all parties hereto authorize and Escrow Agent shall refrain from acting until (a) direct the rights disposition of the adverse claimants shall have Deposit as therein specified, has been finally adjudicated in a court of competent jurisdiction of signed by all such parties and delivered to the monies involved herein or affected herebyEscrow Agent, or (bii) all differences shall have been adjusted as directed by agreement between a court order. If either Seller and Buyeror Purchaser refuses to execute an Agreement of Release when requested to do so in writing, and Escrow Agent a court finds that such party should have executed same, the party who so refused to execute an Agreement of Release shall have been notified in writing of such agreement signed pay the reasonable expenses, including without limitation the reasonable attorney's fees and court costs, incurred by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party in litigation.
(E) Seller and Purchaser agree to execute any separate escrow agreement which the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent customarily requires and uses, provided that such agreement does not receive any written objection to materially increase or expand the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party obligations of either party as specified in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminatethis Agreement.
Appears in 1 contract
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent Escrowee agrees to hold, keep and deliver the Initial Deposit, Deposit and the Additional Deposit all other sums delivered to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, it pursuant hereto in accordance with the terms and provisions of this Agreement. Escrow Agent Escrowee shall not be entitled to any fees or compensation for its services hereunder. Escrow Agent Escrowee shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent Escrowee is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow AgentEscrowee. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent Escrowee shall be entitled to refuse to comply with any such claims or demands so long as such disagreement may continue. In ; and in so refusing, Escrow Agent refusing Escrowee shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent Escrowee shall not become liable to anyone for such refusal; and Escrow Agent Escrowee shall be entitled to continue to refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent Escrowee shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent Escrowee shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forthhereinafter. Upon receipt by Escrow Agent Escrowee from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent Escrowee under the terms of this Agreement, Escrow Agent Escrowee shall give written BUSDOCS/1447877.5 notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent Escrowee does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent Escrowee shall comply with the Escrow Demand. If Escrow Agent Escrowee does receive written objection from the Notified Party in a timely manner as aforesaidmanner, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above. Further Escrowee shall have the right at all times to pay all sums held by it (i) to the appropriate party under the terms hereof, provided, however, in the case of clause or (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies ii) into any court of competent jurisdiction pending such adjudication and to submit such resolution in the State of such Maryland after a dispute to such court by action of interpleaderbetween or among the parties hereto has arisen, whereupon Escrow AgentEscrowee’s obligations hereunder shall terminate.
Appears in 1 contract
Escrow Provisions. Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Deposit, Purchase Money Note and the Additional Deposit all other sums or documents delivered to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, it pursuant hereto in accordance with the terms and provisions of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its services hereunderhereunder other than its customary one-time escrow fee. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Agreement Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall be entitled to refuse to comply with any such claims or demands so long as such disagreement may continue. In ; and in so refusing, refusing Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall be entitled to continue to refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forthhereinafter. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the an “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaidmanner, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), . Further Escrow Agent may bring an shall have the right at all times to pay all sums held by it (i) to the appropriate action party under the terms hereof, or proceeding for leave to deposit said monies (ii) into any court of competent jurisdiction pending such adjudication and to submit such resolution of such after a dispute to such court by action of interpleaderbetween or among the parties hereto has arisen, whereupon Escrow Agent’s 's obligations hereunder shall terminate. Seller and Buyer, jointly and severally agree to indemnify and hold harmless said Escrow Agent from any and all costs, damages and expenses, including reasonable attorneys' fees, that said Escrow Agent may incur in compliance with and in good faith in accordance with the terms of this Agreement; provided, however, this indemnity shall not extend to any act of gross negligence or willful malfeasance on the part of the Escrow Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Summit Healthcare REIT, Inc)
Escrow Provisions. The Escrow Agent hereby acknowledges receipt by will hold the Reservation Deposit and shall return or release the Reservation Deposit in accordance with the terms of this Agreement, upon judicial decree or the delivery to the Escrow Agent of a mutual declaration signed by the Initial Deposit paid by Buyer Reserving Party and Builder directing the Escrow Agent to act. Escrow Agent shall have no obligation or liability hereunder except as a depositary to retain the cash which may be applied deposited with it hereunder and to dispose of the Purchase Price under same in accordance with the terms hereof. Escrow Agent agrees shall be entitled to hold, keep rely and deliver the Initial Deposit, and the Additional Deposit to the extent act upon any written instrument received by Escrow Agent as provided in Section 1.04(a) hereofit from the parties. Upon disposition by Xxxxxx Agent, in accordance with the terms and provisions hereof, of this Agreement. the funds deposited with or retained by Escrow Agent shall not be entitled to any fees or compensation for its services hereunder. , Escrow Agent shall be liable only fully and finally released and discharged from any and all duties, obligations, and liabilities hereunder. The Escrow Agent’s sole liability hereunder shall be to hold said sums the Reservation Deposit, to make payments and deliver the same to the parties named herein distributions in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable otherwise to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties heretodischarge its obligations hereunder. Escrow Agent shall not be required to disburse liable for any of the monies held act performed in good faith or in reliance on any document instrument or statement believed by it under this Agreement unless in accordance with either a joint written instruction of Buyer to be genuine. The Reserving Party and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Builder jointly and severally agree to indemnify and hold harmless Escrow Agent from either Buyer all losses, costs and expenses that may be incurred as a result of its involvement in any litigation, including, but not limited to, attorneys’ fees, arising from the performance of its duties hereunder, provided that such losses, costs and expenses shall not have resulted from any action taken or Seller (omitted by the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent and for which it shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party have been adjudged grossly negligent or engaged in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminatewillful misconduct.
Appears in 1 contract
Samples: Reservation Agreement
Escrow Provisions. The Deposit and any other sums (including any interest earned thereon) which the parties agree shall be held in escrow (collectively “Escrow Funds”), shall be held by Escrow Agent, in trust and disposed of only in accordance with the following provisions:
(a) Escrow Agent hereby acknowledges receipt by Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep and deliver the Initial Depositadminister, and disburse the Additional Deposit Escrow Funds pursuant to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, in accordance with the terms and provisions of this Agreement. Escrow Agent shall not invest such Escrow Funds in a segregated, interest-bearing deposit account at Citibank, N.A. In the event any interest or other income shall be earned on such Escrow Funds, such interest or other income shall become a part of the Escrow Funds and will be the property of the party entitled to any fees the Deposit pursuant to this Agreement. Purchaser’s and Sellers’ Federal Identification Numbers are set forth below.
(b) At such time as Escrow Agent receives written notice from either Purchaser or compensation for its services hereunder. Sellers, or both, setting forth the identity of the party to whom such Escrow Funds (or portions thereof) are to be disbursed and further setting forth the specific section or paragraph of the Agreement pursuant to which the disbursement of such Escrow Funds (or portions thereof) is being requested, Escrow Agent shall disburse such Escrow Funds pursuant to such notice; provided, however, that if such notice is given by either Purchaser or Sellers but not both (except as to a notice of termination delivered by Purchaser under the provisions of Section 6.4, as to which notice of Purchaser only shall be liable only required for the release to hold Purchaser of the Deposit by Escrow Agent hereunder), Escrow Agent shall (i) promptly notify the other party (either Purchaser or Sellers as the case may be) that Escrow Agent has received a request for disbursement, and (ii) withhold disbursement of such Escrow Funds for a period of ten (10) days after receipt of such notice of disbursement and if Escrow Agent receives written notice from either Purchaser or Sellers within said sums ten (10) day period which notice countermands the earlier notice of disbursement, then Escrow Agent shall withhold such disbursement until both Purchaser and deliver the same Sellers can agree upon a disbursement of such Escrow Funds. Purchaser and Sellers hereby agree to send to the parties named herein other, pursuant to Section 15.6, a duplicate copy of any written notice sent to Escrow Agent and requesting any such disbursement or countermanding a request for disbursement.
(c) In performing any of its duties hereunder, Escrow Agent shall not incur any liability to anyone for any damages, losses, or expenses, except for willful default or breach of trust, and it shall accordingly not incur any such liability with respect to (i) any action taken or omitted in accordance good faith upon advice of its legal counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent under this Agreement, or (ii) any action taken or omitted in reliance upon any instrument, including any written notice or instruction provided for in this Agreement, not only as to its due execution and the validity and effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by a proper person or persons, and to conform with the provisions of this Agreement.
(d) Notwithstanding the provisions of Section 14.1(b) (except as to a notice of termination delivered by Purchaser under the provisions of Section 6.4, it being expressly understood that as to which notice of Purchaser only shall be required for the release to Purchaser of the Deposit by acceptance of this Agreement, Escrow Agent is acting hereunder), in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement a dispute between Buyer Purchaser and Seller resulting Sellers sufficient, in any adverse claims and demands being made the sole discretion of Escrow Agent to justify its doing so or in connection with the event that Escrow Agent has not disbursed the Escrow Funds on or for before ten (10) days after the monies involved herein or affected herebyClosing Date, Escrow Agent shall refuse be entitled to comply with any such claims tender into the registry or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition custody of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive any written objection to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand. If Escrow Agent does receive written objection from the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved pursuant to either clause (a) or (b) above, provided, however, in the case of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending the Escrow Funds, together with such adjudication legal pleadings as it may deem appropriate, and thereupon be discharged from all further duties and liabilities under this Agreement. Any such legal action may be brought in a federal or state court in New York County, New York or, if is such courts do not have jurisdiction as to submit such resolution of such dispute to the parties or matters involved then such court as Escrow Agent shall determine to have jurisdiction thereof.
(e) Sellers and Purchaser hereby acknowledge that they are aware the Federal Deposit Insurance Corporation (FDIC) coverages apply only to a maximum amount of $250,000.00 for each individual depositor. Sellers and Purchaser understand that Escrow Agent assumes no responsibility for, nor will Sellers and Purchaser hold same liable for, any loss occurring which arises from the fact that the amount of the Deposit may cause the aggregate amount of any individual depositor's account to exceed $250,000.00 and that the excess amount is not insured by action the Federal Deposit Insurance Corporation
(f) Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Agent has received the Deposit and shall hold the Escrow Funds in escrow, and shall disburse the Escrow Funds pursuant to the provisions of interpleader, whereupon this Article XIV. A copy of this Agreement executed by Escrow Agent’s obligations hereunder Agent shall terminatebe delivered by Escrow Agent to Sellers and Purchaser.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Armada Hoffler Properties, Inc.)
Escrow Provisions. The Deposit and any other sums (including, without limitation, any interest earned thereon) which the parties agree shall be held in escrow (herein collectively called the “Escrow Agent hereby acknowledges receipt Deposits”), shall be held by the Escrow Agent of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to holdAgent, keep and deliver the Initial Depositin trust, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, disposed of only in accordance with the terms following provisions:
Section 13.1 The Escrow Agent shall invest the Escrow Deposits in government insured interest-bearing instruments reasonably satisfactory to both Buyer and provisions Seller, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, and shall promptly provide Buyer and Seller with confirmation of the investments made.
Section 13.2 If the Second Closing occurs, the Escrow Agent shall deliver the Escrow Deposit to, or upon the instructions of, Seller on the Second Closing Date.
Section 13.3 If for any reason either Closing does not occur on the applicable Closing Date, either Seller or Buyer may deliver written notice to Escrow Agent and the other party stating that the this Agreement has terminated and that such party is entitled to disbursement of the Xxxxxxx Money pursuant to the this Agreement. The receiving party shall have ten (10) business days after receipt of such notice to object to such claim by notifying the requesting party and the Escrow Agent in writing of such objection. If no such notice of objection is received by the Escrow Agent within the time period specified above and the Escrow Agent received the evidence that the receiving party has received the aforesaid notice from the requesting party, the Escrow Agent shall disburse funds equal to the amount specified in the requesting party’s notice promptly after the expiration of the ten (10) business day period. If a notice of objection is received by the Escrow Agent, the Escrow Agent shall take no action until it shall have received (i) written instructions signed by the Seller and the Buyer or (ii) a decision by a court of competent jurisdiction directing the Escrow Agent to take certain action.
Section 13.4 The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be entitled deemed to any fees or compensation for its services hereunder. Escrow Agent shall be liable only to hold said sums and deliver the same to the parties named herein in accordance with the provisions agent of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected hereby, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any either of the monies then held by it under the terms of this Agreementparties, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) that the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required liable to disburse any either of the monies held by it under this Agreement unless parties for any action or omission on its part taken or made in accordance with either a joint written instruction of Buyer good faith, and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller not in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms disregard of this Agreement, but shall be liable for its negligent acts and for any Liabilities (including reasonable attorneys’ fees, expenses and disbursements) incurred by Seller or Buyer resulting from the Escrow Agent’s mistake of law respecting the Escrow Agent’s scope or nature of its duties. Seller and Buyer shall jointly and severally indemnify and hold the Escrow Agent shall give written notice harmless from and against all Liabilities (including reasonable attorneys’ fees, expenses and disbursements) incurred in connection with the performance of the Escrow Agent’s duties hereunder, except with respect to actions or omissions taken or made by the other party (the “Notified Party”). If within five (5) business days after the giving of such notice, Escrow Agent does not receive in bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.
Section 13.5 Buyer shall pay any written objection income taxes on any interest earned on the Escrow Deposits. Buyer represents and warrants to the Escrow Demand from Agent that its taxpayer identification number is as set forth adjacent to Buyer’s signature on the Notified Party, signature page to this Agreement.
Section 13.6 The Escrow Agent shall comply with has executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Demand. If Agent has received and shall hold the Escrow Agent does receive written objection from Deposits in escrow, and shall disburse the Notified Party in a timely manner as aforesaid, Escrow Agent shall take no further action until the dispute between the parties has been resolved Deposits pursuant to either clause the provisions of this Article 13. The provisions of this Article 13 shall survive each Closing (aand not be merged therein) or (b) above, provided, however, in the case earlier termination of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any court of competent jurisdiction pending such adjudication and to submit such resolution of such dispute to such court by action of interpleader, whereupon Escrow Agent’s obligations hereunder shall terminatethis Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland American Real Estate Trust, Inc.)
Escrow Provisions. (a) The Escrow Agent hereby acknowledges receipt by shall hold the Cash Deposit in escrow in an interest-bearing bank account at Citibank, N.A. (the “Escrow Account”).
(b) The Escrow Agent shall hold the Cash Deposit in escrow in the Escrow Account until the Closing or sooner termination of the Initial Deposit paid by Buyer to be applied to the Purchase Price under the terms hereof. Escrow Agent agrees to hold, keep this Agreement and deliver the Initial Deposit, and the Additional Deposit to the extent received by Escrow Agent as provided in Section 1.04(a) hereof, shall hold or apply such proceeds in accordance with the terms and provisions of this AgreementSection 14.5(b). The Sellers and the Buyer understand that no interest is earned on the Cash Deposit during the time it takes to transfer into and out of the Escrow Account. At Closing, the Cash Deposit shall be paid by the Escrow Agent shall to, or at the direction of, the Sellers. If for any reason the Closing does not be entitled to any fees or compensation for its services hereunder. occur and either party makes a written demand upon the Escrow Agent shall be liable only to hold said sums and deliver for payment of such amount, the same to the parties named herein in accordance with the provisions of this Agreement, it being expressly understood that by acceptance of this Agreement, Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damagesshall, losses or expenses unless same shall have been caused by the gross negligence or willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and Seller resulting in any adverse claims and demands being made in connection with or for the monies involved herein or affected herebywithin 24 hours, Escrow Agent shall refuse to comply with any such claims or demands so long as such disagreement may continue. In so refusing, Escrow Agent shall make no delivery or other disposition of any of the monies then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not become liable to anyone for such refusal; and Escrow Agent shall refrain from acting until (a) the rights of the adverse claimants shall have been finally adjudicated in a court of competent jurisdiction of the monies involved herein or affected hereby, or (b) all differences shall have been adjusted by agreement between Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Escrow Agent shall not be required to disburse any of the monies held by it under this Agreement unless in accordance with either a joint written instruction of Buyer and Seller or an undisputed Escrow Demand (as hereinafter defined) from either Buyer or Seller in accordance with the provisions hereinafter set forth. Upon receipt by Escrow Agent from either Buyer or Seller (the “Notifying Party”) of any notice or request (the “Escrow Demand”) to perform any act or disburse any portion of the monies held by Escrow Agent under the terms of this Agreement, Escrow Agent shall give written notice to the other party (the “Notified Party”)of such demand. If the Escrow Agent does not receive a written objection within five (5) business days Business Days after the giving of such notice, the Escrow Agent does not receive any written objection is hereby authorized to the Escrow Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demandmake such payment. If the Escrow Agent does receive such written objection from within such five (5) Business Day period or if for any other reason the Notified Party Escrow Agent in a timely manner as aforesaidgood faith shall elect not to make such payment, the Escrow Agent shall take no further action continue to hold such amount until the dispute between otherwise directed by joint written instructions from the parties has been resolved pursuant to either clause (a) this Agreement or (b) above, provided, however, in the case a final judgment of clause (a), Escrow Agent may bring an appropriate action or proceeding for leave to deposit said monies into any a court of competent jurisdiction pending such adjudication jurisdiction. However, the Escrow Agent shall have the right at any time to deposit the Cash Deposit with the clerk of a court of law located in the City, County and to submit such resolution State of New York. The Escrow Agent shall give written notice of such dispute deposit to the Sellers and the Buyer. Upon such court by action deposit the Escrow Agent shall be relieved and discharged of interpleaderall further obligations and responsibilities hereunder.
(c) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, whereupon that the Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or omission on its part, other than for its gross negligence or willful misconduct. The Sellers and the Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with the performance of the Escrow Agent’s obligations hereunder shall terminateduties hereunder.
(d) The Escrow Agent has acknowledged its agreement to these provisions by signing this Agreement in the place indicated following the signatures of the Sellers and the Buyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Properties, Inc.)
