Escrow Terms. 8.1.1 Escrow Agent shall promptly give notice to Purchaser and Seller upon its receipt of any portion of the Deposit from Purchaser in accordance with this Agreement. Escrow Agent shall invest the Deposit (if in cash) in overnight repurchase obligations secured by United States obligations through such bank as Escrow Agent may elect and shall be approved by Purchaser and Seller. Escrow Agent shall not be liable for any loss of such investment (unless due to Escrow Agent’s gross negligence or willful misconduct). All interest on the Deposit shall be treated by Escrow Agent for income tax purposes as earned by Purchaser, and Purchaser shall provide its tax identification number to Escrow Agent for this purpose. 8.1.2 Escrow Agent shall deliver the Deposit to Seller or to Purchaser, as the case may be, under the following conditions: 8.1.2.1 At Closing, the Deposit shall be delivered to Seller (if in cash) or Purchaser (if a Letter of Credit) upon receipt by Escrow Agent of a statement executed by Seller and Purchaser that the Deposit may be so released; or 8.1.2.2 The Deposit shall be delivered to Seller following receipt by Escrow Agent of written demand therefor from Seller, stating that Purchaser has defaulted in the performance of its obligations under this Agreement and specifying the Section of this Agreement which entitles Seller to receive the Deposit, but only if Purchaser shall not have given written notice of objection in accordance with Section 8.1.3; or 8.1.2.3 The Deposit shall be delivered to Purchaser following receipt by Escrow Agent of written demand therefor from Purchaser stating that Seller has defaulted in the performance of its obligations under this Agreement or that this Agreement was terminated under circumstances entitling Purchaser to the return of the Deposit, and specifying the Section of this Agreement which entitles Purchaser to the return of the Deposit, but only if Seller shall not have given written notice of objection in accordance with Section 8.1.3; or 8.1.2.4 The Deposit shall be delivered as directed by joint written instructions of Seller and Purchaser. 8.1.3 Upon the filing of a written demand for the Deposit by Seller or Purchaser pursuant to Section 8.1.2.2 or 8.1.2.3, 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 notice of such objection to Escrow Agent at any time within five (5) business days after such party’s receipt of notice from Escrow Agent, but not thereafter. Failure to deliver such objection notice within such period shall be deemed to be a waiver of such party’s right to object to Escrow Agent’s compliance with such demand. Such objection 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. The foregoing five (5) business day period does not constitute a cure period in which either Seller or Purchaser, as the case may be, shall be required to accept tender of cure of any default under this Agreement. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the release of the Deposit to Seller, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. 8.1.4 If Escrow Agent shall have received the notice of objection provided for in Section 8.1.3 within the time therein prescribed, Escrow Agent shall continue to hold the Deposit until (i) Escrow Agent receives written notice from Seller 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 Seller 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 (but in no event disbursing the Deposit to either Seller or Purchaser), including depositing the Deposit in court and commencing an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the delivery of the Deposit to the clerk of court, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. 8.1.5 Escrow Agent may rely and act upon any instrument or other writing reasonably believed by Escrow Agent to be genuine and purporting to be signed and presented by any person or persons purporting to have authority to act on behalf of Seller or Purchaser, as the case may be, and shall not be liable 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 bound by any modification or termination of this Agreement unless the same is in writing and signed by Purchaser and Seller, and, if Escrow Agent’s duties hereunder are affected, unless Escrow Agent shall have given prior written consent thereto. Escrow Agent shall be reimbursed by Seller and Purchaser for any expenses (including reasonable legal fees and disbursements of outside counsel, including all of Escrow Agent’s fees and expenses with respect to any interpleader action pursuant to Section 8.1.4) incurred in connection with this Agreement, and such liability shall be joint and several; provided that, as between Purchaser and Seller, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement of any such expenses paid to Escrow Agent. In the event that Escrow Agent shall be uncertain as to Escrow Agent’s duties or rights hereunder, or shall receive instructions from Purchaser or Seller that, in Escrow Agent’s opinion, are in conflict with any of the provisions hereof, Escrow Agent shall be entitled to continue to hold the Deposit pursuant to Section 8.1.4, and may decline to take any other action. 8.1.6 Escrow Agent shall have the right at any time to resign upon ten (10) business days prior notice to Seller and Purchaser. Seller and Purchaser shall jointly select a successor Escrow Agent and shall notify Escrow Agent of the name and address of such successor Escrow Agent within ten (10) business days after receipt of notice from Escrow Agent of its intent to resign. If Escrow Agent has not received notice of the name and address of such successor Escrow Agent within such period, Escrow Agent shall have the right to select on behalf of Seller and Purchaser a bank or trust company to act as its successor hereunder. At any time after the ten (10) business day period, Escrow Agent shall have the right to deliver the Deposit to any successor selected hereunder, provided such successor shall execute and deliver to Seller and Purchaser an assumption agreement whereby it assumes all of Escrow Agent’s obligations hereunder. Upon the delivery of all such amounts and such assumption agreement, the successor shall become the Escrow Agent for all purposes under this Section 8.1 and shall have all of the rights and obligations of the Escrow Agent under this Section 8.1, and the resigning Escrow Agent shall have no further responsibilities or obligations hereunder. 8.1.7 If the Deposit is in the form of the Letter of Credit, then not later than the date that is thirty (30) days prior to the expiration of such Letter of Credit, Purchaser shall cause such Letter of Credit to be extended or replaced with another Letter of Credit that satisfies the requirements of this Agreement. If Purchaser fails to so extend or replace such Letter of Credit by such date, then Escrow Agent shall draw upon the same and hold the proceeds of such draw as the Deposit hereunder, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. If either party disputes the release of the Deposit to the other pursuant to Section 8.1.3, then if the Deposit is in the form of the Letter of Credit, Escrow Agent is hereby irrevocably directed to draw upon the Letter of Credit and hold the proceeds of such draw as the Deposit.

Appears in 2 contracts

Samples: Agreement of Purchase and Sale (Bureau of National Affairs Inc), Agreement of Purchase and Sale (Bureau of National Affairs Inc)

Escrow Terms. 8.1.1 Escrow Agent shall promptly give notice to Purchaser and Seller upon its receipt of any portion of the Deposit from Purchaser in accordance with this Agreement. Escrow Agent shall invest the Deposit (if in cash) in overnight repurchase obligations secured by United States obligations through such bank as Escrow Agent may elect and shall be approved by Purchaser and Seller. Escrow Agent shall not be liable for any loss of such investment (unless due to Escrow Agent’s gross negligence or willful misconduct). All interest on the Deposit shall be treated by Escrow Agent for income tax purposes as earned by Purchaser, and Purchaser shall provide its tax identification number to Escrow Agent for this purpose. 8.1.2 Escrow Agent shall deliver the Deposit to Seller or to Purchaser, as the case may be, under the following conditions: ~~8.1.2.1~~ 8.1.2.1. At Closing, the Deposit shall be delivered to Seller (if in cash) or to Purchaser (if a Letter of Credit) upon receipt by Escrow Agent of a statement executed by Seller and Purchaser that the Deposit may be so released; or ~~8.1.2.2~~ 8.1.2.2. The Deposit shall be delivered to Seller following receipt by Escrow Agent of written demand therefor from Seller, stating that Purchaser has defaulted in the performance of its obligations under this Agreement and specifying the Section of this Agreement which entitles Seller to receive the Deposit, but only if Purchaser shall not have given written notice of objection in accordance with Section 8.1.3; or ~~8.1.2.3~~ 8.1.2.3. The Deposit shall be delivered to Purchaser following receipt by Escrow Agent of written demand therefor from Purchaser stating that Seller has defaulted in the performance of its obligations under this Agreement or that this Agreement was terminated under circumstances entitling Purchaser to the return of the Deposit, and specifying the Section of this Agreement which entitles Purchaser to the return of the Deposit, but only if Seller shall not have given written notice of objection in accordance with Section 8.1.3; or ~~8.1.2.4~~ 8.1.2.4. The Deposit shall be delivered as directed by joint written instructions of Seller and Purchaser. 8.1.3 Upon the filing of a written demand for the Deposit by Seller or Purchaser pursuant to Section 8.1.2.2 or 8.1.2.3, 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 notice of such objection to Escrow Agent at any time within five (5) business days after such party’s receipt of notice from Escrow Agent, but not thereafter. Failure to deliver such objection notice within such period shall be deemed to be a waiver of such party’s right to object to Escrow Agent’s compliance with such demand. Such objection 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. The foregoing five (5) business day period does not constitute a cure period in which either Seller or Purchaser, as the case may be, shall be required to accept tender of cure of any default under this Agreement. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the release of the Deposit to Seller, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. 8.1.4 If Escrow Agent shall have received the notice of objection provided for in Section 8.1.3 within the time therein prescribed, Escrow Agent shall continue to hold the Deposit until (i) Escrow Agent receives written notice from Seller 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 Seller 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 (but in no event disbursing the Deposit to either Seller or Purchaser), including depositing the Deposit in court and commencing an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the delivery of the Deposit to the clerk of court, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. 8.1.5 Escrow Agent may rely and act upon any instrument or other writing reasonably believed by Escrow Agent to be genuine and purporting to be signed and presented by any person or persons purporting to have authority to act on behalf of Seller or Purchaser, as the case may be, and shall not be liable 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 bound by any modification or termination of this Agreement unless the same is in writing and signed by Purchaser and Seller, and, if Escrow Agent’s duties hereunder are affected, unless Escrow Agent shall have given prior written consent thereto. Escrow Agent shall be reimbursed by Seller and Purchaser for any expenses (including reasonable legal fees and disbursements of outside counsel, including all of Escrow Agent’s fees and expenses with respect to any interpleader action pursuant to Section 8.1.4) incurred in connection with this Agreement, and such liability shall be joint and several; provided that, as between Purchaser and Seller, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement of any such expenses paid to Escrow Agent. In the event that Escrow Agent shall be uncertain as to Escrow Agent’s duties or rights hereunder, or shall receive instructions from Purchaser or Seller that, in Escrow Agent’s opinion, are in conflict with any of the provisions hereof, Escrow Agent shall be entitled to continue to hold the Deposit pursuant to Section 8.1.4, and may decline to take any other action. 8.1.6 Escrow Agent shall have the right at any time to resign upon ten (10) business days prior notice to Seller and Purchaser. Seller and Purchaser shall jointly select a successor Escrow Agent and shall notify Escrow Agent of the name and address of such successor Escrow Agent within ten (10) business days after receipt of notice from Escrow Agent of its intent to resign. If Escrow Agent has not received notice of the name and address of such successor Escrow Agent within such period, Escrow Agent shall have the right to select on behalf of Seller and Purchaser a bank or trust company to act as its successor hereunder. At any time after the ten (10) business day period, Escrow Agent shall have the right to deliver the Deposit to any successor selected hereunder, provided such successor shall execute and deliver to Seller and Purchaser an assumption agreement whereby it assumes all of Escrow Agent’s obligations hereunder. Upon the delivery of all such amounts and such assumption agreement, the successor shall become the Escrow Agent for all purposes under this Section 8.1 and shall have all of the rights and obligations of the Escrow Agent under this Section 8.1, and the resigning Escrow Agent shall have no further responsibilities or obligations hereunder. 8.1.7 If the Deposit is in the form of the Letter of Credit, then not later than the date that is thirty (30) days prior to the expiration of such Letter of Credit, Purchaser shall cause such Letter of Credit to be extended or replaced with another Letter of Credit that satisfies the requirements of this Agreement. If Purchaser fails to so extend or replace such Letter of Credit by such date, then Escrow Agent shall draw upon the same and hold the proceeds of such draw as the Deposit hereunder, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. If either party disputes the release of the Deposit to the other pursuant to Section 8.1.3, then if the Deposit is in the form of the Letter of Credit, Escrow Agent is hereby irrevocably directed to draw upon the Letter of Credit and hold the proceeds of such draw as the Deposit.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Bureau of National Affairs Inc)

Escrow Terms. ~~8.1.1~~ 8.1.1. Escrow Agent shall promptly give notice to ~~Purchaser~~ Buyer and Seller upon its receipt of any portion of the Deposit from ~~Purchaser~~ Buyer in accordance with this Agreement. Escrow Agent shall invest the Deposit ~~(if in cash) in overnight repurchase obligations secured by United States obligations through~~ at such bank as Escrow Agent may elect and such bank and any investment of the Deposit shall be approved by ~~Purchaser~~ Buyer and Seller. Escrow Agent shall not be liable for any loss of such investment (unless due to Escrow Agent’s gross ~~negligence~~ negligence, recklessness or willful misconduct). All interest on the Deposit shall be treated by Escrow Agent for income tax purposes as earned by ~~Purchaser~~Buyer, and ~~Purchaser~~ Buyer shall provide its tax identification number to Escrow Agent for this purpose. ~~8.1.2~~ 8.1.2. Escrow Agent shall deliver the Deposit to Seller or to ~~Purchaser~~Buyer, as the case may be, under the following conditions: ~~8.1.2.1 At Closing,~~ 8.1.2.1. the Deposit shall be delivered to or at the direction of Seller ~~(if in cash) or Purchaser (if a Letter of Credit)~~ at Closing upon receipt by Escrow Agent of a statement executed by Seller and ~~Purchaser~~ Buyer that the Deposit may be so released; or ~~8.1.2.2 The~~ 8.1.2.2. the Deposit shall be delivered to Seller following receipt by Escrow Agent of written demand therefor from Seller, stating that ~~Purchaser~~ Buyer has defaulted in the performance of its obligations under this Agreement and specifying the Section of this Agreement which entitles Seller to receive the Deposit, ~~but only~~ if ~~Purchaser~~ Buyer shall not have given written notice of objection in accordance with Section 8.1.3; or ~~8.1.2.3 The~~ 8.1.2.3. the Deposit shall be delivered to ~~Purchaser~~ Buyer following receipt by Escrow Agent of written demand therefor from ~~Purchaser~~ Buyer stating that Seller has defaulted in the performance of its obligations under this Agreement or that this Agreement was terminated under circumstances entitling ~~Purchaser~~ Buyer to the return of the Deposit, and specifying the Section of this Agreement which entitles ~~Purchaser~~ Buyer to the return of the Deposit, ~~but only~~ if Seller shall not have given written notice of objection in accordance with Section 8.1.3; or ~~8.1.2.4 The~~ 8.1.2.4. the Deposit shall be delivered as directed by joint written instructions of Seller and ~~Purchaser~~Buyer. ~~8.1.3~~ 8.1.3. Upon the filing of a written demand for the Deposit by Seller or ~~Purchaser~~ Buyer pursuant to Section 8.1.2.2 or 8.1.2.3, 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 notice of such objection to Escrow Agent at any time within five (5) business days after such party’s receipt of notice from Escrow Agent, but not thereafter. Failure to deliver such objection notice within such period shall be deemed to be a waiver of such party’s right to object to Escrow Agent’s compliance with such demand. Such objection 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. The foregoing five (5) business day period does not constitute a cure period in which either Seller or Purchaser, as the case may be, shall be required to accept tender of cure of any default under this Agreement. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the release of the Deposit to Seller, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw8. 8.1.4 If Escrow Agent shall have received the notice of objection provided for in Section 8.1.3 within the time therein prescribed, Escrow Agent shall continue to hold the Deposit until (i) Escrow Agent receives written notice from Seller 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 Seller 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 (but in no event disbursing the Deposit to either Seller or Purchaser), including depositing the Deposit in court and commencing an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the delivery of the Deposit to the clerk of court, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. 8.1.5 Escrow Agent may rely and act upon any instrument or other writing reasonably believed by Escrow Agent to be genuine and purporting to be signed and presented by any person or persons purporting to have authority to act on behalf of Seller or Purchaser, as the case may be, and shall not be liable 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 bound by any modification or termination of this Agreement unless the same is in writing and signed by Purchaser and Seller, and, if Escrow Agent’s duties hereunder are affected, unless Escrow Agent shall have given prior written consent thereto. Escrow Agent shall be reimbursed by Seller and Purchaser for any expenses (including reasonable legal fees and disbursements of outside counsel, including all of Escrow Agent’s fees and expenses with respect to any interpleader action pursuant to Section 8.1.4) incurred in connection with this Agreement, and such liability shall be joint and several; provided that, as between Purchaser and Seller, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement of any such expenses paid to Escrow Agent. In the event that Escrow Agent shall be uncertain as to Escrow Agent’s duties or rights hereunder, or shall receive instructions from Purchaser or Seller that, in Escrow Agent’s opinion, are in conflict with any of the provisions hereof, Escrow Agent shall be entitled to continue to hold the Deposit pursuant to Section 8.1.4, and may decline to take any other action. 8.1.6 Escrow Agent shall have the right at any time to resign upon ten (10) business days prior notice to Seller and Purchaser. Seller and Purchaser shall jointly select a successor Escrow Agent and shall notify Escrow Agent of the name and address of such successor Escrow Agent within ten (10) business days after receipt of notice from Escrow Agent of its intent to resign. If Escrow Agent has not received notice of the name and address of such successor Escrow Agent within such period, Escrow Agent shall have the right to select on behalf of Seller and Purchaser a bank or trust company to act as its successor hereunder. At any time after the ten (10) business day period, Escrow Agent shall have the right to deliver the Deposit to any successor selected hereunder, provided such successor shall execute and deliver to Seller and Purchaser an assumption agreement whereby it assumes all of Escrow Agent’s obligations hereunder. Upon the delivery of all such amounts and such assumption agreement, the successor shall become the Escrow Agent for all purposes under this Section 8.1 and shall have all of the rights and obligations of the Escrow Agent under this Section 8.1, and the resigning Escrow Agent shall have no further responsibilities or obligations hereunder. 8.1.7 If the Deposit is in the form of the Letter of Credit, then not later than the date that is thirty (30) days prior to the expiration of such Letter of Credit, Purchaser shall cause such Letter of Credit to be extended or replaced with another Letter of Credit that satisfies the requirements of this Agreement. If Purchaser fails to so extend or replace such Letter of Credit by such date, then Escrow Agent shall draw upon the same and hold the proceeds of such draw as the Deposit hereunder, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. If either party disputes the release of the Deposit to the other pursuant to Section 8.1.3, then if the Deposit is in the form of the Letter of Credit, Escrow Agent is hereby irrevocably directed to draw upon the Letter of Credit and hold the proceeds of such draw as the Deposit.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Chesapeake Lodging Trust)

Escrow Terms. ~~8.1.1~~ (a) The Deposit shall be held in escrow by Xxxxxxx & Xxxxxx, P.C. (the "Escrow Agent shall promptly give notice to Purchaser and Seller upon its receipt of any portion of the Deposit from Purchaser in accordance with this Agreement. Escrow Agent shall invest the Deposit (if in cashAgent") in ~~overnight repurchase obligations secured by United States obligations through such bank~~ an interest bearing account until disbursed as ~~Escrow Agent may elect and shall be approved by Purchaser and Seller~~herein provided. ~~Escrow Agent shall not be liable for any loss of such investment (unless due to Escrow Agent’s gross negligence or willful misconduct). All~~ Any interest accrued on the Deposit shall be ~~treated by Escrow Agent for income tax purposes as earned by Purchaser, and Purchaser shall provide its tax identification number~~ paid to ~~Escrow Agent for this purpose. 8.1.2 Escrow Agent shall deliver~~ whichever party is entitled to the Deposit ~~to Seller or to Purchaser~~in accordance with the provisions of this Agreement. If the transaction contemplated in this Agreement is consummated, as the ~~case may be, under the following conditions: 8.1.2.1 At Closing,~~ interest earned on the Deposit shall be ~~delivered to Seller (if in cash) or Purchaser (if a Letter of Credit) upon receipt by Escrow Agent of a statement executed by~~ split evenly between Seller and ~~Purchaser that the Deposit may be so released; or 8.1.2.2~~ Purchaser. The Deposit shall be ~~delivered to Seller following receipt~~ held and disbursed by Escrow Agent in the following manner: (i) to Seller at the closing upon consummation of the closing; or (ii) to Purchaser if Purchaser elects to terminate the Agreement in accordance with Sections 2, 3, 4, 7 and 10 -------------------------- hereof; or (iii) to Seller upon receipt of written demand ~~therefor from Seller~~therefor, stating that Purchaser has defaulted in ~~the~~ performance of ~~its~~ Purchaser's obligations under this Agreement and ~~specifying~~ the ~~Section~~ facts and circumstances underlying such default and that Seller is entitled to the Deposit under the provisions of this ~~Agreement which entitles Seller to receive the Deposit~~Agreement; provided however, ~~but only if Purchaser~~ that Escrow Agent shall not honor said demand until the period of time for objection thereto as set forth in subsection 1.4(b) hereof shall have ~~given~~ expired, nor thereafter if Escrow Agent shall have received written notice of objection from Purchaser in accordance with the provisions of clause (b) of this Section ~~8.1.3~~1.4; or----------- ~~8.1.2.3 The Deposit shall be delivered~~ (iv) to Purchaser ~~following~~ upon receipt ~~by Escrow Agent~~ of written demand ~~therefor from Purchaser~~ therefor, stating that Seller has defaulted in ~~the~~ performance of ~~its~~ Seller's obligations under this Agreement or and the facts and circumstances underlying such default and that ~~this Agreement was terminated under circumstances entitling~~ Purchaser is entitled to the ~~return of~~ Deposit under the ~~Deposit, and specifying the Section~~ provisions of this ~~Agreement which entitles Purchaser to the return of the Deposit~~Agreement; provided, ~~but only if Seller~~ however, that Escrow Agent shall not honor such demand until the period of time for objection thereto as set forth in subsection 1.4(b) hereof shall have ~~given~~ expired, nor thereafter if Escrow Agent shall have received written notice of objection from Seller in accordance with the provisions of clause (b) of this Section ~~8.1.3; or~~1.4. ----------- ~~8.1.2.4 The Deposit shall be delivered as directed by joint written instructions~~ (b) Upon receipt of ~~Seller and Purchaser. 8.1.3 Upon the filing of a~~ written demand for the Deposit by Purchaser or Seller ~~or Purchaser~~ pursuant to clause (iii) or (iv) of Section ~~8.1.2.2 or 8.1.2.3~~1.4(a), -------------- Escrow Agent shall promptly ~~give notice thereof (including~~ send a copy ~~of such demand)~~ thereof to the other party. The other party shall have the right to object to the delivery of the ~~Deposit,~~ Deposit by ~~giving~~ sending written notice of such objection to Escrow Agent ~~at any time~~ within the greater of five (5) days or three (3) business days after ~~such party’s receipt~~ Escrow Agent delivers a copy of ~~notice from Escrow Agent,~~ the written demand to the objecting party but not thereafter. ~~Failure to deliver such objection notice within such period shall be deemed to be a waiver of such party’s right to object to Escrow Agent’s compliance with such demand.~~ Such ~~objection~~ notice shall set forth the basis for objecting to the delivery of the Deposit. Upon receipt of such ~~notice of objection~~notice, Escrow Agent shall promptly ~~give~~ send a copy ~~of such notice~~ thereof to the party who ~~filed~~ made the written demand~~. The foregoing five~~ . (5c) ~~business day period does not constitute a cure period in which either Seller or Purchaser, as~~ In the ~~case may be, shall be required to accept tender of cure~~ event of any ~~default under this Agreement. If~~ dispute between the ~~Deposit is in~~ parties regarding the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the release of the Deposit to Seller, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. 8.1.4 If Escrow Agent shall have received the notice of objection provided for in Section 8.1.3 within the time therein prescribedDeposit, Escrow ~~Agent shall continue to~~ Agent, at its option, may disregard all instructions received and either (i) hold the Deposit until ~~(i)~~ the dispute is mutually resolved and Escrow Agent ~~receives written notice from~~ is advised of this fact in writing by both Seller and ~~Purchaser directing the disbursement of the Deposit~~Purchaser, ~~in which case~~ or Escrow Agent ~~shall then disburse the Deposit in accordance with said direction~~is otherwise instructed by a final unappealable judgment of a court of competent jurisdiction, or (ii) ~~litigation is commenced between~~ deposit the Deposit with a court of competent jurisdiction (whereupon Escrow Agent shall be released and relieved of any and all liability and obligations hereunder from and after the date of such deposit). (d) In the event Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive conflicting instructions, claims or demands from the parties hereto, or instructions which conflict with any of the provisions of this Agreement, Escrow Agent shall be entitled (but not obligated) to refrain from taking any action other than to keep safely the Deposit until Escrow Agent shall be instructed otherwise, in writing signed by both Seller and Purchaser, or by final judgment of a court of competent jurisdiction. (e) Escrow Agent may rely upon, and shall be protected in acting or refraining from acting upon, any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties, provided that no modification of this Agreement which ~~case~~ purports to affect the rights, duties or obligations of Escrow Agent hereunder shall be binding upon Escrow Agent unless Escrow Agent has signed such modification. (f) Seller and Purchaser shall jointly and severally hold Escrow Agent harmless against any loss, damage, liability or expense incurred by Escrow Agent not caused by its willful misconduct or gross negligence, arising out of or in connection with its entering into this Agreement and the carrying out of its duties hereunder, including the reasonable costs and expenses of defending itself against any claim of liability or participating in any legal proceeding. Escrow Agent may consult with counsel of its choice, and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. (g) 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 Escrow Agent, prior to such resignation, identifies a replacement escrow agent (the "Replacement Escrow Agent") who: (i) is approved in writing by Seller and Purchaser, which approval shall not be unreasonably withheld or delayed; (ii) signs a counterpart of this Agreement; (iii) receives the Deposit from Escrow Agent and acknowledges receipt thereof; and (iv) agrees to be bound by all of the provisions hereof. If Escrow Agent resigns and no Replacement Escrow Agent is designated, Escrow Agent shall deposit the Deposit with ~~the clerk~~ a court 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 (but in no event disbursing the Deposit to either Seller or Purchaser), including depositing the Deposit in court and commencing an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing partycompetent jurisdiction. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the delivery of the Deposit to the clerk of court, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. 8.1.5 Escrow Agent may rely and act upon any instrument or other writing reasonably believed by Escrow Agent to be genuine and purporting to be signed and presented by any person or persons purporting to have authority to act on behalf of Seller or PurchaserAfter resigning, as ~~the case may be~~described above, 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 bound by any modification or termination of this Agreement unless the same is in writing and signed by Purchaser and Seller, and, if Escrow Agent’s duties hereunder are affected, unless Escrow Agent shall have given prior written consent thereto. Escrow Agent shall be reimbursed by Seller and Purchaser for any expenses (including reasonable legal fees and disbursements of outside counsel, including all of Escrow Agent’s fees and expenses with respect to any interpleader action pursuant to Section 8.1.4) incurred in connection with this Agreement, and such liability shall be joint and several; provided that, as between Purchaser and Seller, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement of any such expenses paid to Escrow Agent. In the event that Escrow Agent shall be uncertain as to Escrow Agent’s duties or rights hereunder, or shall receive instructions from Purchaser or Seller that, in Escrow Agent’s opinion, are in conflict with any of the provisions hereof, Escrow Agent shall be entitled to continue to hold the Deposit pursuant to Section 8.1.4, and may decline to take any other action. 8.1.6 Escrow Agent shall have the right at any time to resign upon ten (10) business days prior notice to Seller and Purchaser. Seller and Purchaser shall jointly select a successor Escrow Agent and shall notify Escrow Agent of the name and address of such successor Escrow Agent within ten (10) business days after receipt of notice from Escrow Agent of its intent to resign. If Escrow Agent has not received notice of the name and address of such successor Escrow Agent within such period, Escrow Agent shall have the right to select on behalf of Seller and Purchaser a bank or trust company to act as its successor hereunder. At any time after the ten (10) business day period, Escrow Agent shall have the right to deliver the Deposit to any successor selected hereunder, provided such successor shall execute and deliver to Seller and Purchaser an assumption agreement whereby it assumes all of Escrow Agent’s obligations hereunder. Upon the delivery of all such amounts and such assumption agreement, the successor shall become the Escrow Agent for all purposes under this Section 8.1 and shall have all of the rights and obligations of the Escrow Agent under this Section 8.1, and the resigning Escrow Agent shall have no further ~~responsibilities~~ duties or ~~obligations~~ liability hereunder. ~~8.1.7 If~~ (h) Purchaser and Seller, together, shall have the ~~Deposit is in~~ right to terminate the ~~form~~ appointment of ~~the Letter~~ Escrow Agent hereunder by giving to it notice of ~~Credit~~such termination, ~~then not later than~~ specifying the date ~~that is thirty~~ upon which such termination shall take effect and designating a Replacement Escrow Agent, consistent with clauses (30i) ~~days prior to the expiration~~ through (iv) of Section 1.4(g) above. After such ~~Letter of Credit~~termination, Purchaser shall cause such Letter of Credit to be extended or replaced with another Letter of Credit that satisfies the requirements of this Agreement. If Purchaser fails to so extend or replace such Letter of Credit by such date, then Escrow Agent -------------- shall ~~draw upon the same and hold the proceeds of such draw as the Deposit~~ have no further duties or liability hereunder~~, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw.~~ . (i) Seller and Purchaser shall ~~execute such documents as may be necessary~~ share equally the responsibility for reimbursement to ~~cause~~ Escrow Agent ~~to effectuate~~ or Replacement Escrow Agent of all out-of-pocket expenses, disbursements and advances incurred or made by either in connection with the carrying out of its duties hereunder. (j) Escrow Agent's and Replacement Escrow Agent's agreements and obligations hereunder shall terminate and such ~~draw. If either party disputes the release~~ Escrow Agent or Replacement Escrow Agent shall be discharged from further duties and obligations hereunder upon final disbursement of the Deposit to in accordance with the ~~other pursuant to Section 8.1.3, then if the Deposit is in the form~~ terms of ~~the Letter of Credit, Escrow Agent is hereby irrevocably directed to draw upon the Letter of Credit and hold the proceeds of such draw as the Deposit~~this Agreement.

Appears in 1 contract

Samples: Agreement of Sale (Roberts Pharmaceutical Corp)

Escrow Terms. 8.1.1 ~~Escrow Agent~~ The Title Company shall promptly give notice to Purchaser and Seller upon its receipt of any portion of the Deposit from Purchaser in accordance with this Agreement. ~~Escrow Agent~~ The Title Company shall invest the Deposit ~~(if~~ in ~~cash) in overnight repurchase obligations secured by United States obligations through~~ an interest bearing money market account at such bank as ~~Escrow Agent~~ the Title Company may elect and shall be approved by Purchaser and Seller. ~~Escrow Agent~~ The Title Company shall not be liable for any loss of such investment (unless due to ~~Escrow Agent’s~~ the Title Company's gross negligence or willful misconduct). All interest on the Deposit shall be treated by ~~Escrow Agent~~ the Title Company for income tax purposes as earned by Purchaser, and ~~Purchaser shall provide its~~ Purchaser's tax identification number ~~to Escrow Agent~~ for this ~~purpose~~purpose is 04-3221586. 8.1.2 ~~Escrow Agent~~ The Title Company shall deliver the ~~Deposit to Seller~~ Dexxxxx xx Xeller or to Purchaser, as the case may be, under the following conditions: 8.1.2.1 ~~At Closing,~~ the Deposit shall be delivered to Purchaser if, prior to 5:00 p.m. (Pacific Standard Time) on the last day of the Due Diligence Period, Purchaser has delivered to Seller ~~(if~~ and Title Company written notice of termination of this Agreement in ~~cash)~~ accordance with Section 5.1. 8.1.2.2 the Deposit shall be delivered to or ~~Purchaser (if a Letter~~ at the direction of ~~Credit)~~ Seller at Closing upon receipt by ~~Escrow Agent~~ the Title Company of a statement executed by Seller and Purchaser that the Deposit may be so released; or ~~8.1.2.2 The~~ 8.1.2.3 the Deposit shall be delivered to Seller following receipt by ~~Escrow Agent~~ the Title Company of written demand therefor from Seller, stating that Purchaser has defaulted in the performance of its obligations under this Agreement and specifying the Section of this Agreement which entitles Seller to receive the Deposit, ~~but only~~ if Purchaser shall not have given written notice of objection in accordance with Section 8.1.3; or ~~8.1.2.3 The~~ 8.1.2.4 the Deposit shall be delivered to Purchaser following receipt by ~~Escrow Agent~~ the Title Company of written demand therefor from Purchaser stating that Seller has defaulted in the performance of its obligations under this Agreement or that this Agreement was terminated under circumstances entitling Purchaser to the return of the Deposit, and specifying the Section of this Agreement which entitles Purchaser to the return of the Deposit, ~~but only~~ if Seller shall not have given written notice of objection in accordance with Section 8.1.3; or ~~8.1.2.4 The~~ 8.1.2.5 the Deposit shall be delivered as directed by joint written instructions of Seller and Purchaser. 8.1.3 Upon the filing of a written demand for the Deposit by Seller or Purchaser pursuant to Section ~~8.1.2.2~~ 8.1.2.3 or ~~8.1.2.3~~8.1.2.4, ~~Escrow Agent~~ the Title Company 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 notice of such objection to ~~Escrow Agent~~ the Title Company at any time within five (5) business days after such party’s 's receipt of notice from ~~Escrow Agent~~the Title Company, but not thereafter. Failure to deliver such objection notice within such period shall be deemed to be a waiver of such party’s 's right to object to ~~Escrow Agent’s~~ the Title Company's compliance with such demand. Such objection notice shall set forth the basis for objecting to the delivery of the Deposit. Upon receipt of such notice of objection, ~~Escrow Agent~~ the Title Company shall promptly give a copy of such notice to the party who filed the written demand. The foregoing five (5) business day period does not constitute a cure period in which either Seller or Purchaser, as the case may be, shall be required to accept tender of cure of any default under this Agreement. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the release of the Deposit to Seller, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. 8.1.4 If ~~Escrow Agent~~ the Title Company shall have received the notice of objection provided for in Section 8.1.3 within the time therein prescribed, ~~Escrow Agent~~ the Title Company shall continue to hold the Deposit until (i) ~~Escrow Agent~~ the Title Company receives written notice from Seller and Purchaser directing the disbursement of the Deposit, in which case ~~Escrow Agent~~ the Title Company shall then disburse the Deposit in accordance with said direction, or (ii) litigation is commenced between Seller and Purchaser, in which case ~~Escrow Agent~~ the Title Company shall deposit the Deposit with the clerk of the court in which said litigation is pending, or (iii) ~~Escrow Agent~~ the Title Company takes such affirmative steps as ~~Escrow Agent~~ the Title Company may elect, at ~~Escrow Agent’s~~ the Title Company's option, in order to terminate ~~Escrow Agent’s~~ the Title Company's duties hereunder (but in no event disbursing the Deposit to either Seller or Purchaser), including depositing the Deposit in court and commencing an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the delivery of the Deposit to the clerk of court, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. 8.1.5 ~~Escrow Agent~~ The Title Company may rely and act upon any instrument or other writing reasonably believed by ~~Escrow Agent~~ it to be genuine and purporting to be signed and presented by any person or persons purporting to have authority to act on behalf of Seller or Purchaser, as the case may be, and shall not be liable in connection with the performance of any duties imposed upon ~~Escrow Agent~~ the Title Company as escrow agent by the provisions of this Agreement, except for ~~Escrow Agent’s~~ the Title Company's own gross negligence, willful misconduct or default. ~~Escrow Agent~~ The Title Company shall have no duties or responsibilities except those set forth herein. ~~Escrow Agent~~ The Title Company shall not be bound by any modification or termination of this Agreement unless the same is in writing and signed by Purchaser and Seller, and, if ~~Escrow Agent’s~~ the Title Company's duties hereunder are affected, unless ~~Escrow Agent~~ the Title Company shall have given prior written consent thereto. ~~Escrow Agent~~ The Title Company shall be reimbursed by Seller and Purchaser for any expenses (including reasonable legal fees and disbursements of outside counsel, including all of ~~Escrow Agent’s~~ the Title Company's fees and expenses with respect to any interpleader action pursuant to Section 8.1.4) incurred in connection with this Agreement, and such liability shall be joint and several; provided that, as between Purchaser and Seller, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement of any such expenses paid to ~~Escrow Agent~~the Title Company. In the event that ~~Escrow Agent~~ the Title Company shall be uncertain as to ~~Escrow Agent’s~~ the Title Company's duties or rights hereunder, or shall receive instructions from Purchaser or Seller that, in ~~Escrow Agent’s~~ the Title Company's opinion, are in conflict with any of the provisions hereof, ~~Escrow Agent~~ the Title Company shall be entitled to continue to hold the Deposit pursuant to Section 8.1.4, and may decline to take any other action. 8.1.6 ~~Escrow Agent~~ The Title Company shall have the right at any time to resign as escrow agent upon ten (10) business days prior notice to Seller and Purchaser. Seller and Purchaser shall jointly select a successor ~~Escrow Agent~~ escrow agent and shall notify ~~Escrow Agent~~ the Title Company of the name and address of such successor ~~Escrow Agent~~ escrow agent within ten (10) business days after receipt of notice from ~~Escrow Agent~~ the Title Company of its intent to ~~resign~~resign as escrow agent. If ~~Escrow Agent~~ the Title Company has not received notice of the name and address of such successor ~~Escrow Agent~~ escrow agent within such period, ~~Escrow Agent~~ the Title Company shall have the right to select on behalf of Seller and Purchaser a bank or trust company to act as its successor hereunder. At any time after the ten (10) business day period, ~~Escrow Agent~~ the Title Company shall have the right to deliver the Deposit to any successor selected hereunder, provided such successor shall execute and deliver to Seller and Purchaser an assumption agreement whereby it assumes all of ~~Escrow Agent’s~~ the Title Company's obligations ~~hereunder~~hereunder as escrow agent. Upon the delivery of all such amounts and such assumption agreement, the successor shall become the ~~Escrow Agent~~ escrow agent for all purposes under this Section 8.1 and shall have all of the rights and obligations of the ~~Escrow Agent~~ Title Company under this Section 8.1, and the ~~resigning Escrow Agent~~ Title Company shall have no further responsibilities or obligations ~~hereunder~~hereunder as escrow agent. 8.1.7 If the Deposit is in the form of the Letter of Credit, then not later than the date that is thirty (30) days prior to the expiration of such Letter of Credit, Purchaser shall cause such Letter of Credit to be extended or replaced with another Letter of Credit that satisfies the requirements of this Agreement. If Purchaser fails to so extend or replace such Letter of Credit by such date, then Escrow Agent shall draw upon the same and hold the proceeds of such draw as the Deposit hereunder, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. If either party disputes the release of the Deposit to the other pursuant to Section 8.1.3, then if the Deposit is in the form of the Letter of Credit, Escrow Agent is hereby irrevocably directed to draw upon the Letter of Credit and hold the proceeds of such draw as the Deposit.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Arqule Inc)

Escrow Terms. ~~8.1.1~~ 7.3.1 Escrow Agent shall ~~promptly give notice to Purchaser~~ hold the Deposits and ~~Seller upon its receipt of~~ all interest accrued thereon, if any ~~portion~~ (collectively, the "Fund") in escrow and shall dispose of the ~~Deposit from Purchaser~~ Fund only in accordance with the provisions of this Agreement. Escrow Agent shall invest the Deposit (if in cash) in overnight repurchase obligations secured by United States obligations through such bank as Escrow Agent may elect and shall be approved by Purchaser and Seller. Escrow Agent shall not be liable for any loss of such investment (unless due to Escrow Agent’s gross negligence or willful misconduct). All interest on the Deposit shall be treated by Escrow Agent for income tax purposes as earned by Purchaser, and Purchaser shall provide its tax identification number to Escrow Agent for this purposeSection. ~~8.1.2~~ 7.3.2 Escrow Agent shall deliver the ~~Deposit~~ Fund to ~~Seller~~ Sellers or ~~to Purchaser~~Limited Partner on behalf of the Purchaser Parties, as the case may be, ~~under the following conditions~~as follows: ~~8.1.2.1 At Closing~~A. to Sellers, upon completion of the ~~Deposit~~ Closing (including all accrued interest, which shall be ~~delivered~~ applied to ~~Seller (if in cash) or Purchaser (if a Letter~~ the Purchase Price for the benefit of ~~Credit) upon receipt by Escrow Agent of a statement executed by Seller and Purchaser that the Deposit may be so released~~Limited Partner); or ~~8.1.2.2 The Deposit shall be delivered~~ B. to ~~Seller following~~ Sellers, after receipt by of Sellers' demand in which Sellers certify that Limited Partner and/or General Partner has defaulted under this Agreement, but Escrow Agent of written demand therefor from Seller, stating that Purchaser has defaulted in the performance of its obligations under this Agreement and specifying the Section of this Agreement which entitles Seller to receive the Deposit, but only if Purchaser shall not ~~have~~ honor Sellers' demand until more than ten days after Escrow Agent has given ~~written notice~~ a copy of ~~objection~~ Sellers' demand to Limited Partner in accordance with Section ~~8.1.3~~7.3.3, nor thereafter if Escrow Agent receives a Notice of Objection (hereinafter defined) from Limited Partner within such ten day period; or ~~8.1.2.3 The Deposit shall be delivered~~ C. to ~~Purchaser following~~ Limited Partner, after receipt by of Limited Partner's demand in which Limited Partner certifies either that (i) Sellers have defaulted under this Agreement, or (ii) this Agreement has been otherwise terminated or canceled, and Limited Partner is thereby entitled to receive the Fund; but Escrow Agent of written demand therefor from Purchaser stating that Seller has defaulted in the performance of its obligations under this Agreement or that this Agreement was terminated under circumstances entitling Purchaser to the return of the Deposit, and specifying the Section of this Agreement which entitles Purchaser to the return of the Deposit, but only if Seller shall not ~~have~~ honor Limited Partner's demand until more than ten days after Escrow Agent has given ~~written notice~~ a copy of ~~objection~~ Limited Partner's demand to Sellers in accordance with Section ~~8.1.3; or 8.1.2.4 The Deposit~~ 7.3.3, nor thereafter if Escrow Agent receives a Notice of Objection from Sellers within such ten day period. Notwithstanding the foregoing, if Limited Partner terminates this Agreement prior to the expiration of the Due Diligence Period, Escrow Agent shall, immediately upon receipt of Limited Partner's demand, deliver the Fund to Limited Partner. Upon delivery of the Fund, Escrow Agent shall be ~~delivered as directed~~ relieved of all liability hereunder and with respect to the Fund. Escrow Agent shall deliver the Fund, at the election of the party entitled to receive the same, by ~~joint written instructions~~ a bank wire transfer of ~~Seller and Purchaser~~immediately available funds to an account designated by such party. ~~8.1.3~~ 7.3.3 Upon ~~the filing~~ receipt of a written demand ~~for~~ from Sellers or Limited Partner under Sections 7.3.2.B or 7.3.2.C, except in the ~~Deposit by Seller or Purchaser pursuant~~ event of a demand which states that Limited Partner has terminated the Agreement prior to ~~Section 8.1.2.2 or 8.1.2.3~~the expiration of the Due Diligence Period, Escrow Agent shall ~~promptly give notice thereof (including~~ send a copy of such ~~demand)~~ demand to the other party. ~~The other party shall have the right to object to the delivery of the Deposit, by giving notice of such objection to Escrow Agent at any time within five (5) business~~ Within ten days after ~~such party’s receipt~~ the date of ~~notice from Escrow Agent~~receiving same, but not thereafter~~. Failure~~ , the other party may object to ~~deliver~~ delivery of the Fund to the party making such demand by giving a notice of objection ~~notice within such period shall be deemed to be~~ (a ~~waiver~~ "Notice of ~~such party’s right to object~~ Objection") to Escrow Agent~~’s compliance with such demand~~. ~~Such objection notice shall set forth the basis for objecting to the delivery~~ After receiving a Notice of ~~the Deposit. Upon receipt of such notice of objection~~Objection, Escrow Agent shall ~~promptly give~~ send a copy of such ~~notice~~ Notice of Objection to the party who ~~filed~~ made the ~~written~~ demand~~. The foregoing five (5) business day period does not constitute a cure period~~ ; and thereafter, in which either Seller or Purchaser, as the case may be, shall be required to accept tender of cure of any default under this Agreement. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the release of the Deposit to Seller, its sole and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. 8.1.4 If Escrow Agent shall have received the notice of objection provided for in Section 8.1.3 within the time therein prescribedabsolute discretion, Escrow Agent ~~shall~~ may elect either (i) to continue to hold the ~~Deposit~~ Fund until ~~(i)~~ Escrow Agent receives a written ~~notice from Seller~~ agreement of Limited Partner and ~~Purchaser~~ Sellers directing the disbursement of the ~~Deposit~~Fund, in which ~~case~~ event Escrow Agent shall ~~then~~ disburse the ~~Deposit~~ Fund in accordance with ~~said direction, or~~ such agreement; and/or (ii) ~~litigation is commenced between Seller~~ to take any and ~~Purchaser~~all actions as Escrow Agent deems necessary or desirable, in ~~which case Escrow Agent shall~~ its sole and absolute discretion, to discharge and terminate its duties under this Agreement (other than paying the Fund to one of the parties), including, without limitation, depositing the Fund into any court of competent jurisdiction and bringing any action of interpleader or any other proceeding; and/or (iii) in the event of any litigation between Sellers and Limited Partner, to deposit the ~~Deposit~~ Fund with the clerk of the court in which ~~said~~ such litigation is pending. 7.3.4 If Escrow Agent is uncertain for any reason whatsoever as to its duties or rights hereunder (and whether or not Escrow Agent has received any written demand under Sections 7.3.2.B or 7.3.4.C, or Notice of Objection under Section 7.3.3, notwithstanding anything to the contrary herein, Escrow Agent may hold and apply the Fund pursuant to Section 7.3.3(i), (ii) or (iii) ~~Escrow Agent takes such affirmative steps as Escrow Agent~~ and may ~~elect, at Escrow Agent’s option, in order~~ decline to ~~terminate Escrow Agent’s duties hereunder (but in no event disbursing the Deposit to either Seller or Purchaser), including depositing the Deposit in court and commencing an~~ take any other action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the delivery of the Deposit to the clerk of court, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. 8.1.5 Escrow Agent may rely and act upon any instrument or other writing reasonably believed by Escrow Agent to be genuine and purporting to be signed and presented by any person or persons purporting to have authority to act on behalf of Seller or Purchaser, as the case may be, and shall not be liable 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 bound by any modification or termination of this Agreement unless the same is in writing and signed by Purchaser and Seller, and, if Escrow Agent’s duties hereunder are affected, unless Escrow Agent shall have given prior written consent thereto. Escrow Agent shall be reimbursed by Seller and Purchaser for any expenses (including reasonable legal fees and disbursements of outside counsel, including all of Escrow Agent’s fees and expenses with respect to any interpleader action pursuant to Section 8.1.4) incurred in connection with this Agreement, and such liability shall be joint and several; provided that, as between Purchaser and Seller, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement of any such expenses paid to Escrow Agentwhatsoever. In the event ~~that~~ the Fund is deposited in a court by Escrow Agent ~~shall be uncertain as~~ pursuant to ~~Escrow Agent’s duties~~ Section 7.3.3(ii) or ~~rights hereunder, or shall receive instructions from Purchaser or Seller that, in Escrow Agent’s opinion, are in conflict with any of the provisions hereof~~(iii), Escrow Agent shall be entitled to ~~continue~~ rely upon the decision of such court. In the event of any dispute whatsoever among the parties with respect to ~~hold~~ disposition of the ~~Deposit pursuant to Section 8.1.4~~Fund, Limited Partner and ~~may decline to take any other action. 8.1.6~~ Sellers shall pay the reasonable attorney's fees and costs incurred by Escrow Agent (which said parties shall ~~have the right at~~ share equally, but for which said parties shall be jointly and severally liable) for any time to resign upon ten (10) business days prior notice to Seller and Purchaser. Seller and Purchaser shall jointly select a successor Escrow Agent and shall notify Escrow Agent of the name and address of such successor Escrow Agent within ten (10) business days after receipt of notice from Escrow Agent of its intent to resign. If Escrow Agent has not received notice of the name and address of such successor Escrow Agent within such period, Escrow Agent shall have the right to select on behalf of Seller and Purchaser a bank or trust company to act as its successor hereunder. At any time after the ten (10) business day period, Escrow Agent shall have the right to deliver the Deposit to any successor selected hereunder, provided such successor shall execute and deliver to Seller and Purchaser an assumption agreement whereby it assumes all of Escrow Agent’s obligations hereunder. Upon the delivery of all such amounts and such assumption agreement, the successor shall become the Escrow Agent for all purposes under this Section 8.1 and shall have all of the rights and obligations of the Escrow Agent under this Section 8.1, and the resigning Escrow Agent shall have no further responsibilities or obligations hereunder. 8.1.7 If the Deposit is litigation in the form of the Letter of Credit, then not later than the date that is thirty (30) days prior to the expiration of such Letter of Credit, Purchaser shall cause such Letter of Credit to be extended or replaced with another Letter of Credit that satisfies the requirements of this Agreement. If Purchaser fails to so extend or replace such Letter of Credit by such date, then Escrow Agent shall draw upon the same and hold the proceeds of such draw as the Deposit hereunder, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. If either party disputes the release of the Deposit to the other pursuant to Section 8.1.3, then if the Deposit is in the form of the Letter of Credit, which Escrow Agent is ~~hereby irrevocably directed to draw upon the Letter of Credit and hold the proceeds of such draw as the Deposit~~named as, or becomes, a party.

Appears in 1 contract

Samples: Asset Contribution, Purchase and Sale Agreement (Philips International Realty Corp)

Escrow Terms. 8.1.1 Escrow Agent shall promptly give notice to Purchaser and Seller upon its receipt ~~of any portion~~ of the Deposit from Purchaser in accordance with this Agreement. Escrow Agent shall invest the Deposit ~~(if~~ in ~~cash) in overnight repurchase obligations secured by United States obligations through~~ an interest bearing money market account at such bank as Escrow Agent may elect and shall be approved by Purchaser and Seller. Escrow Agent shall not be liable for any loss of such investment (unless due to Escrow Agent’s gross negligence or willful misconduct). All interest on the Deposit shall be treated ~~by Escrow Agent for income tax purposes~~ as earned by Purchaser, and ~~Purchaser~~ shall ~~provide its tax identification number to Escrow Agent~~ be and become part of the Deposit for all purposes under this ~~purpose~~Agreement. 8.1.2 Escrow Agent shall deliver the Deposit to Seller or to Purchaser, as the case may be, under the following conditions: 8.1.2.1 ~~At Closing,~~ the Deposit shall be delivered to or at the direction of Seller ~~(if in cash) or Purchaser (if a Letter of Credit)~~ at Closing upon receipt by Escrow Agent of a statement executed by Seller and Purchaser that the Deposit may be so ~~released~~released for credit against the Purchase Price; or 8.1.2.2 ~~The~~ subject to the provisions of Section 8.2, the Deposit shall be delivered to Seller following receipt by Escrow Agent of written demand therefor from Seller, stating that Purchaser has defaulted in the performance of its obligations under this Agreement and specifying the Section of this Agreement which entitles Seller to receive the Deposit, ~~but only~~ if Purchaser shall not have given written notice of objection in accordance with Section 8.1.3; or 8.1.2.3 ~~The~~ the Deposit shall be delivered to Purchaser following receipt by Escrow Agent of written demand therefor from Purchaser stating that Seller has defaulted in the performance of its obligations under this Agreement or that this Agreement was terminated under circumstances entitling Purchaser to the return of the Deposit, and specifying the Section of this Agreement which entitles Purchaser to the return of the Deposit, ~~but only~~ if Seller shall not have given written notice of objection in accordance with Section 8.1.3; or 8.1.2.4 ~~The~~ the Deposit shall be delivered as directed by joint written instructions of Seller and Purchaser. Each of Seller and Purchaser agrees to execute any such instructions if the other party is entitled to receive the Deposit under the provisions of this Agreement. 8.1.3 Upon the filing of a written demand for the Deposit by Seller or Purchaser pursuant to Section 8.1.2.2 or 8.1.2.3, 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 notice of such objection to Escrow Agent at any time within five (5) business days after such party’s receipt of notice from Escrow Agent, but not thereafter. ~~Failure to deliver such objection notice within such period shall be deemed to be a waiver of such party’s right to object to Escrow Agent’s compliance with such demand.~~ Such ~~objection~~ 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. The foregoing five (5) business day period does not constitute a cure period in which either Seller or Purchaser, as the case may be, shall be required to accept tender of cure of any default under this Agreement. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the release of the Deposit to Seller, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. 8.1.4 If Escrow Agent shall have received the notice of objection provided for in Section 8.1.3 within the time therein prescribed, Escrow Agent shall continue to hold the ~~Deposit~~ Deposit, until (i) Escrow Agent receives written notice from Seller 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 Seller 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 (but in no event disbursing the Deposit to either Seller or Purchaser), including but not limited to depositing the Deposit in court and commencing an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the delivery of the Deposit to the clerk of court, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. 8.1.5 Escrow Agent may rely and act upon any instrument or other writing reasonably believed by Escrow Agent to be genuine and purporting to be signed and presented by any person or persons purporting to have authority to act on behalf of Seller or Purchaser, as the case may be, and shall not be liable 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 bound by any ~~modification~~ modification, cancellation or ~~termination~~ rescission of this Agreement unless the same is in writing and signed by Purchaser and Seller, and, if Escrow Agent’s duties hereunder are affected, unless Escrow Agent shall have given prior written consent thereto. Escrow Agent shall be reimbursed by Seller and Purchaser for any expenses (including reasonable legal fees and disbursements of outside counsel, including all of Escrow Agent’s fees and expenses with respect to any interpleader action pursuant to Section 8.1.4) incurred in connection with this Agreement, and such liability shall be joint and several; provided that, as between Purchaser and Seller, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement of any such expenses paid to Escrow Agent. In the event that Escrow Agent shall be uncertain as to Escrow Agent’s duties or rights hereunder, or shall receive instructions from Purchaser or Seller that, in Escrow Agent’s opinion, are in conflict with any of the provisions hereof, Escrow Agent shall be entitled to continue to hold the Deposit pursuant to Section 8.1.4, and may decline to take any other action. 8.1.6 Escrow Agent shall have the right at any time to resign upon ten (10) business ~~days~~ days’ prior notice to Seller and Purchaser. Seller and Purchaser shall jointly select a successor Escrow Agent and shall notify Escrow Agent of the name and address of such successor Escrow Agent within ten (10) business days after receipt of notice from Escrow Agent of its intent to resign. If Escrow Agent has not received notice of the name and address of such successor Escrow Agent within such period, Escrow Agent shall have the right to select on behalf of Seller and Purchaser a bank or trust company to act as its successor hereunder. At any time after the ten (10) business day period, Escrow Agent shall have the right to deliver the Deposit to any successor selected hereunder, provided such successor shall execute and deliver to Seller and Purchaser an assumption agreement whereby it assumes all of Escrow Agent’s obligations hereunder. Upon the delivery of all such amounts and such assumption agreement, the successor shall become the Escrow Agent for all purposes under this Section 8.1 and shall have all of the rights and obligations of the Escrow Agent under this Section 8.1, and the resigning Escrow Agent shall have no further responsibilities or obligations hereunder. 8.1.7 If the Deposit is in the form of the Letter of Credit, then not later than the date that is thirty (30) days prior to the expiration of such Letter of Credit, Purchaser shall cause such Letter of Credit to be extended or replaced with another Letter of Credit that satisfies the requirements of this Agreement. If Purchaser fails to so extend or replace such Letter of Credit by such date, then Escrow Agent shall draw upon the same and hold the proceeds of such draw as the Deposit hereunder, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. If either party disputes the release of the Deposit to the other pursuant to Section 8.1.3, then if the Deposit is in the form of the Letter of Credit, Escrow Agent is hereby irrevocably directed to draw upon the Letter of Credit and hold the proceeds of such draw as the Deposit.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Highland Hospitality Corp)

Escrow Terms. ~~8.1.1~~ (a) Escrow Agent shall ~~promptly give notice to Purchaser and Seller upon its receipt of any portion of~~ cause the Deposit ~~from Purchaser~~ to be held in ~~accordance with this Agreement~~a non-interest bearing trust account at a federally insured banking institution until disbursed as herein provided. Escrow Agent shall invest the Deposit (if in cash) in overnight repurchase obligations secured by United States obligations through such bank as Escrow Agent may elect and shall be approved by Purchaser and Seller. Escrow Agent shall not be liable for any loss of such investment (unless due to Escrow Agent’s gross negligence or willful misconduct). All interest on the Deposit shall be treated by Escrow Agent for income tax purposes as earned by Purchaser, and Purchaser shall provide its tax identification number to Escrow Agent for this purpose. 8.1.2 Escrow Agent shall deliver cause the Deposit to ~~Seller or to Purchaser, as the case may be, under~~ be held and disbursed in the following ~~conditions~~manner: ~~8.1.2.1 At Closing, the Deposit shall be delivered~~ (i) to Seller ~~(if in cash) or Purchaser (if a Letter of Credit) upon receipt by Escrow Agent of a statement executed by Seller and Purchaser that~~ at the ~~Deposit may be so released~~Closing; or ~~8.1.2.2 The Deposit shall be delivered~~ (ii) to Seller ~~following~~ upon receipt ~~by Escrow Agent~~ of written demand therefor from Seller, stating that Purchaser has defaulted in the performance of ~~its~~ Purchaser’s obligations under this Agreement and ~~specifying~~ the ~~Section of this Agreement which entitles Seller to receive the Deposit~~facts and circumstances underlying such default; provided, ~~but only if Purchaser~~ however, that Escrow Agent shall not ~~have given~~ honor such demand until at least five (5) business days after it has sent a copy of such demand to Purchaser, in accordance with the Notice provisions set forth in Section 12.2, nor thereafter if Escrow Agent receives a written notice of objection from Purchaser, with a copy to Seller, in accordance with the provisions of Section ~~8.1.3~~1.4(b); or ~~8.1.2.3 The Deposit shall be delivered~~ (iii) to Purchaser ~~following~~ upon receipt ~~by Escrow Agent~~ of written demand therefor from ~~Purchaser~~ Purchaser, in accordance with the Notice provisions set forth in Section 12.2, stating that ~~Seller has defaulted in the performance of its obligations under~~ either 140131415.4 142232567.2 (x) this Agreement or has been terminated pursuant to a provision hereof which states that ~~this Agreement was terminated under circumstances entitling~~ Purchaser is entitled to the ~~return of the Deposit~~Deposit upon termination, and specifying the Section of this Agreement ~~which entitles Purchaser to~~ providing for such termination, or (y) Seller has defaulted in the ~~return~~ performance of Seller’s obligations under this Agreement and the ~~Deposit~~facts and circumstances underlying such default; provided, ~~but only if Seller~~ however, that Escrow Agent shall not ~~have given~~ honor such demand until at least five (5) business days after it has sent a copy of such demand to Seller, in accordance with the Notice provisions set forth in Section 12.2, nor thereafter if Escrow Agent receives a written notice of objection from Seller, with a copy to Purchaser, in accordance with the provisions of Section ~~8.1.3; or 8.1.2.4 The Deposit shall be delivered as directed by joint written instructions of Seller and Purchaser~~1.4(b). ~~8.1.3~~ (b) Upon ~~the filing~~ receipt of a written demand for the Deposit by Seller pursuant to Section 1.4(a)(ii) or a written demand for the Deposit by Purchaser pursuant to Section ~~8.1.2.2 or 8.1.2.3~~1.4(a)(iii), Escrow Agent shall promptly ~~give notice thereof (including~~ send a copy ~~of such demand)~~ thereof to the other party, in accordance with the Notice provisions set forth in Section 12.2. The other party ~~shall~~ will have the right to object to the delivery of the ~~Deposit,~~ Deposit by ~~giving~~ sending written notice of such objection to Escrow ~~Agent at any time~~ Agent, with a copy to the other party, in accordance with the Notice provisions set forth in Section 12.2, within five (5) business days after ~~such party’s receipt~~ Escrow Agent delivers a copy of ~~notice from Escrow Agent,~~ the written demand to the objecting party but not thereafter. ~~Failure to deliver such objection notice within such period shall be deemed to be a waiver of such party’s right to object to Escrow Agent’s compliance with such demand.~~ Such ~~objection~~ notice shall set forth the basis for objecting to the delivery of the Deposit. Upon receipt of such ~~notice~~ notice, Xxxxxx Agent shall promptly send a copy thereof to the party that made the written demand for the Deposit. (c) In the event of ~~objection~~any dispute between the parties regarding the Deposit, Escrow Agent shall promptly give a copy of such notice to the party who filed the written demand. The foregoing five (5) business day period does not constitute a cure period in which either Seller or Purchaser, as the case may be, shall be required to accept tender of cure of any default under this Agreement. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the release of disregard all instructions received and cause the Deposit to ~~Seller,~~ be held until the dispute is resolved and ~~Seller and Purchaser hereby irrevocably direct~~ Escrow Agent ~~to effectuate such draw. 8.1.4 If Escrow Agent shall have received the notice~~ is advised of ~~objection provided for~~ this fact in Section 8.1.3 within the time therein prescribed, Escrow Agent shall continue to hold the Deposit until (i) Escrow Agent receives written notice from Seller 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 writing by both Seller and Purchaser, ~~in which case~~ or Escrow Agent ~~shall deposit~~ is otherwise instructed by a final non-appealable judgment of a court of competent jurisdiction. (d) If Escrow Agent is uncertain as to its duties or rights hereunder or receives conflicting instructions, claims or demands from the ~~Deposit with the clerk of the court in which said litigation is pending~~parties hereto, 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 (but in no event disbursing the Deposit to either Seller or Purchaser), including depositing the Deposit in court and commencing an action for interpleader, the costs thereof to be borne by whichever instructions which conflict with any of Seller or Purchaser is the losing party. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the delivery of the Deposit to the clerk of court, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. 8.1.5 Escrow Agent may rely and act upon any instrument or other writing reasonably believed by Escrow Agent to be genuine and purporting to be signed and presented by any person or persons purporting to have authority to act on behalf of Seller or Purchaser, as the case may be, and shall not be liable 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~~ refrain from taking any action other than to cause the Deposit to be kept safely until Xxxxxx Agent ~~shall not be bound by any modification or termination of this Agreement unless the same~~ is instructed otherwise in a writing ~~and~~ signed by Purchaser and Seller, and, if Escrow Agent’s duties hereunder are affected, unless Escrow Agent shall have given prior written consent thereto. Escrow Agent shall be reimbursed by Seller and Purchaser for any expenses (including reasonable legal fees and disbursements of outside counsel, including all of Escrow Agent’s fees and expenses with respect to any interpleader action pursuant to Section 8.1.4) incurred in connection with this Agreement, and such liability shall be joint and several; provided that, as between Purchaser and Seller, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement of any such expenses paid to Escrow Agent. In the event that Escrow Agent shall be uncertain as to Escrow Agent’s duties or rights hereunder, or shall receive instructions from Purchaser or Seller that, in Escrow Agent’s opinion, are in conflict with any of the provisions hereof, Escrow Agent shall be entitled to continue to hold the Deposit pursuant to Section 8.1.4, and may decline to take any other action. 8.1.6 Escrow Agent shall have the right at any time to resign upon ten (10) business days prior notice to both Seller and Purchaser. , or by final non-appealable judgment of a court of competent jurisdiction. (e) Escrow Agent may rely upon, and will be protected in acting or refraining from acting upon, any written notice, instruction or request furnished to it hereunder and believed by Xxxxxx Agent to be genuine and to have been signed or presented by the proper party or parties. (f) Seller and Purchaser shall jointly ~~select a successor~~ and severally hold Escrow Agent ~~and shall notify~~ harmless against any loss, damage, liability or expense incurred by Escrow Agent not caused by its willful misconduct or gross negligence, arising out of or in connection with its entering into this Agreement and the ~~name~~ carrying out of its duties hereunder, including the reasonable costs and ~~address~~ expenses of defending itself against any claim of liability or participating in any legal proceeding. Escrow Agent may consult with counsel of its choice, and will have full and complete authorization and protection for any action taken or suffered by Escrow Agent hereunder in good faith and in accordance with the opinion of such ~~successor Escrow~~ counsel. (g) Xxxxxx Agent ~~within ten (10) business days after receipt of~~ may resign at will and be discharged from its duties or obligations hereunder by giving written notice ~~from Escrow Agent of its intent~~ to ~~resign. If Escrow Agent has not received notice of the name~~ Purchaser and ~~address~~ Seller of such ~~successor Escrow Agent within~~ resignation, which notice must specify the date when such period, Escrow Agent shall have the right to select on behalf of Seller and Purchaser a bank or trust company to act as its successor hereunder. At any time after the ten (10) business day period, Escrow Agent shall have the right to deliver the Deposit to any successor selected hereunderresignation will take effect, provided such successor shall execute and deliver to Seller and Purchaser an assumption agreement whereby it assumes all of Escrow Agent’s obligations hereunder. Upon the delivery of all such amounts and such assumption agreement, the successor shall become the Escrow Agent for all purposes under this Section 8.1 and shall have all of the rights and obligations of the Escrow Agent under this Section 8.1, and the resigning Escrow Agent shall have no further responsibilities or obligations hereunder. 8.1.7 If the Deposit is in the form of the Letter of Credit, then not later than the date that ~~is thirty (30) days~~ prior to the ~~expiration~~ effective date of such ~~Letter of Credit~~resignation, ~~Purchaser~~ a substitute escrow agent is jointly approved in writing by Xxxxxx and Purchaser, which approval shall ~~cause such Letter of Credit to~~ not be ~~extended~~ unreasonably withheld, conditioned or replaced with another Letter of Credit that satisfies the requirements of this Agreement. If Purchaser fails to so extend or replace such Letter of Credit by such date, then Escrow Agent shall draw upon the same and hold the proceeds of such draw as the Deposit hereunder, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. If either party disputes the release of the Deposit to the other pursuant to Section 8.1.3, then if the Deposit is in the form of the Letter of Credit, Escrow Agent is hereby irrevocably directed to draw upon the Letter of Credit and hold the proceeds of such draw as the Deposit.delayed,

Appears in 1 contract

Samples: Agreement of Sale (Commvault Systems Inc)

Escrow Terms. 8.1.1 ~~Escrow Agent~~ The Title Company shall promptly give notice to Purchaser and Seller upon its receipt of any portion of the Deposit from Purchaser in accordance with this Agreement. ~~Escrow Agent~~ The Title Company shall invest the Deposit ~~(if~~ in ~~cash) in overnight repurchase obligations secured by United States obligations through~~ an interest bearing money market account at such bank as ~~Escrow Agent~~ the Title Company may elect and shall be approved by Purchaser and Seller. ~~Escrow Agent~~ The Title Company shall not be liable for any loss of such investment (unless due to ~~Escrow Agent’s~~ the Title Company's gross negligence or willful misconduct). All interest on the Deposit shall be treated by ~~Escrow Agent~~ the Title Company for income tax purposes as earned by Purchaser, and ~~Purchaser shall provide its~~ Purchaser's tax identification number ~~to Escrow Agent~~ for this ~~purpose~~purpose is __________. 8.1.2 ~~Escrow Agent~~ The Title Company shall deliver the Deposit to Seller or to Purchaser, as the case may be, under the following conditions: 8.1.2.1 ~~At Closing,~~ the Deposit shall be delivered to or at the direction of Seller ~~(if in cash) or Purchaser (if a Letter of Credit)~~ at Closing upon receipt by ~~Escrow Agent~~ the Title Company of a statement executed by Seller and Purchaser that the Deposit may be so released; or 8.1.2.2 ~~The~~ the Deposit shall be delivered to Seller following receipt by ~~Escrow Agent~~ the Title Company of written demand therefor from Seller, stating that Purchaser has defaulted in the performance of its obligations under this Agreement and specifying the Section of this Agreement which entitles Seller to receive the Deposit, ~~but only~~ if Purchaser shall not have given written notice of objection in accordance with Section 8.1.3; or 8.1.2.3 ~~The~~ the Deposit shall be delivered to Purchaser following receipt by ~~Escrow Agent~~ the Title Company of written demand therefor from Purchaser stating that Seller has defaulted in the performance of its obligations under this Agreement or that this Agreement was terminated under circumstances entitling Purchaser to the return of the Deposit, and specifying the Section of this Agreement which entitles Purchaser to the return of the Deposit, ~~but only~~ if Seller shall not have given written notice of objection in accordance with Section 8.1.3; or 8.1.2.4 ~~The~~ the Deposit shall be delivered as directed by joint written instructions of Seller and Purchaser. 8.1.3 Upon the filing of a written demand for the Deposit by Seller or Purchaser pursuant to Section 8.1.2.2 or 8.1.2.3, ~~Escrow Agent~~ the Title Company 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 notice of such objection to ~~Escrow Agent~~ the Title Company at any time within five (5) business days after such party’s 's receipt of notice from ~~Escrow Agent~~the Title Company, but not thereafter. Failure to deliver such objection notice within such period shall be deemed to be a waiver of such party’s 's right to object to ~~Escrow Agent’s~~ the Title Company's compliance with such demand. Such objection notice shall set forth the basis for objecting to the delivery of the Deposit. Upon receipt of such notice of objection, ~~Escrow Agent~~ the Title Company shall promptly give a copy of such notice to the party who filed the written demand. The foregoing five (5) business day period does not constitute a cure period in which either Seller or Purchaser, as the case may be, shall be required to accept tender of cure of any default under this Agreement. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the release of the Deposit to Seller, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. 8.1.4 If ~~Escrow Agent~~ the Title Company shall have received the notice of objection provided for in Section 8.1.3 within the time therein prescribed, ~~Escrow Agent~~ the Title Company shall continue to hold the Deposit until (i) ~~Escrow Agent~~ the Title Company receives written notice from Seller and Purchaser directing the disbursement of the Deposit, in which case ~~Escrow Agent~~ the Title Company shall then disburse the Deposit in accordance with said direction, or (ii) litigation is commenced between Seller and Purchaser, in which case ~~Escrow Agent~~ the Title Company shall deposit the Deposit with the clerk of the court in which said litigation is pending, or (iii) ~~Escrow Agent~~ the Title Company takes such affirmative steps as ~~Escrow Agent~~ the Title Company may elect, at ~~Escrow Agent’s~~ the Title Company's option, in order to terminate ~~Escrow Agent’s~~ the Title Company's duties hereunder (but in no event disbursing the Deposit to either Seller or Purchaser), including depositing the Deposit in court and commencing an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party. If the Deposit is in the form of the Letter of Credit, then Escrow Agent shall draw upon the same prior to the delivery of the Deposit to the clerk of court, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. 8.1.5 ~~Escrow Agent~~ The Title Company may rely and act upon any instrument or other writing reasonably believed by ~~Escrow Agent~~ it to be genuine and purporting to be signed and presented by any person or persons purporting to have authority to act on behalf of Seller or Purchaser, as the case may be, and shall not be liable in connection with the performance of any duties imposed upon ~~Escrow Agent~~ the Title Company as escrow agent by the provisions of this Agreement, except for ~~Escrow Agent’s~~ the Title Company's own gross negligence, willful misconduct or default. ~~Escrow Agent~~ The Title Company shall have no duties or responsibilities except those set forth herein. ~~Escrow Agent~~ The Title Company shall not be bound by any modification or termination of this Agreement unless the same is in writing and signed by Purchaser and Seller, and, if ~~Escrow Agent’s~~ the Title Company's duties hereunder are affected, unless ~~Escrow Agent~~ the Title Company shall have given prior written consent thereto. ~~Escrow Agent~~ The Title Company shall be reimbursed by Seller and Purchaser for any expenses (including reasonable legal fees and disbursements of outside counsel, including all of ~~Escrow Agent’s~~ the Title Company's fees and expenses with respect to any interpleader action pursuant to Section 8.1.4) incurred in connection with this Agreement, and such liability shall be joint and several; provided that, as between Purchaser and Seller, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement of any such expenses paid to ~~Escrow Agent~~the Title Company. In the event that ~~Escrow Agent~~ the Title Company shall be uncertain as to ~~Escrow Agent’s~~ the Title Company's duties or rights hereunder, or shall receive instructions from Purchaser or Seller that, in ~~Escrow Agent’s~~ the Title Company's opinion, are in conflict with any of the provisions hereof, ~~Escrow Agent~~ the Title Company shall be entitled to continue to hold the Deposit pursuant to Section 8.1.4, and may decline to take any other action. 8.1.6 ~~Escrow Agent~~ The Title Company shall have the right at any time to resign as escrow agent upon ten (10) business days prior notice to Seller and Purchaser. Seller and Purchaser shall jointly select a successor ~~Escrow Agent~~ escrow agent and shall notify ~~Escrow Agent~~ the Title Company of the name and address of such successor ~~Escrow Agent~~ escrow agent within ten (10) business days after receipt of notice from ~~Escrow Agent~~ the Title Company of its intent to ~~resign~~resign as escrow agent. If ~~Escrow Agent~~ the Title Company has not received notice of the name and address of such successor ~~Escrow Agent~~ escrow agent within such period, ~~Escrow Agent~~ the Title Company shall have the right to select on behalf of Seller and Purchaser a bank or trust company to act as its successor hereunder. At any time after the ten (10) business day period, ~~Escrow Agent~~ the Title Company shall have the right to deliver the Deposit to any successor selected hereunder, provided such successor shall execute and deliver to Seller and Purchaser an assumption agreement whereby it assumes all of ~~Escrow Agent’s~~ the Title Company's obligations ~~hereunder~~hereunder as escrow agent. Upon the delivery of all such amounts and such assumption agreement, the successor shall become the ~~Escrow Agent~~ escrow agent for all purposes under this Section 8.1 and shall have all of the rights and obligations of the ~~Escrow Agent~~ Title Company under this Section 8.1, and the ~~resigning Escrow Agent~~ Title Company shall have no further responsibilities or obligations ~~hereunder~~hereunder as escrow agent. 8.1.7 If the Deposit is in the form of the Letter of Credit, then not later than the date that is thirty (30) days prior to the expiration of such Letter of Credit, Purchaser shall cause such Letter of Credit to be extended or replaced with another Letter of Credit that satisfies the requirements of this Agreement. If Purchaser fails to so extend or replace such Letter of Credit by such date, then Escrow Agent shall draw upon the same and hold the proceeds of such draw as the Deposit hereunder, and Seller and Purchaser hereby irrevocably direct Escrow Agent to effectuate such draw. Seller and Purchaser shall execute such documents as may be necessary to cause Escrow Agent to effectuate such draw. If either party disputes the release of the Deposit to the other pursuant to Section 8.1.3, then if the Deposit is in the form of the Letter of Credit, Escrow Agent is hereby irrevocably directed to draw upon the Letter of Credit and hold the proceeds of such draw as the Deposit.

Appears in 1 contract

Samples: Lease (Arqule Inc)

Common use of Escrow Terms Clause in Contracts