Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. (b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel. (c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 3 contracts
Samples: Sale Agreement (Mack Cali Realty L P), Agreement of Sale and Purchase (Mack Cali Realty L P), Sale Agreement (Mack Cali Realty L P)
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money The Deposit shall be non-refundable to Purchaserheld by the Escrow Agent, but in trust, on the terms hereinafter set forth:
A. The Escrow Agent shall deposit the Escrow Deposit in treasury bills, treasury backed repurchase agreements or as otherwise directed in writing by Sellers and Buyer.
B. The Escrow Agent shall not commingle the Deposit with any other funds of the Escrow Agent or others and shall promptly advise Buyer and Sellers of the number of any bank account in which the Escrow Deposit has been deposited.
C. If the Closing takes place under this Agreement (the "Closing"), then, on the Closing Date, the Escrow Agent shall deliver the Deposit to, or upon the instructions of, Sellers. In such event, any interest earned on the Escrow Deposit shall be credited against the Balance of the Purchase Price at due from Buyer hereunder.
D. If this Agreement is terminated in accordance with the Closing. All interest earned on terms hereof, then the Xxxxxxx Money Escrow Agent shall pay the Deposit to, or upon the instructions of, the party entitled thereto in accordance with the provisions of this Agreement.
E. If the Closing does not take place under this Agreement by reason of the failure of either party to comply with its obligations hereunder, then the Escrow Agent shall be paid pay the Deposit to the party entitled thereto in accordance with the provisions of this Agreement.
F. It is agreed that the duties of the Escrow Agent are only as herein specifically provided, and, subject to the Xxxxxxx Money Depositprovisions of subparagraph G below, are purely ministerial in nature, and that the Escrow Agent shall incur no liability whatever except for willful misconduct or gross negligence, as long as the Escrow Agent has acted in good faith. In Sellers and Buyer each release the event this Agreement is terminated prior Escrow Agent from any act done or omitted to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned done by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in good faith in the amount performance of its duties hereunder. Each of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit Sellers and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit Buyer jointly and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree severally agrees to indemnify Escrow Agent and hold the Escrow Agent harmless from any and all claimscosts, damagesexpenses, losses claims or expenses arising in connection herewith. actions which may be incurred or asserted by or against the Escrow Agent, including without limitation claims or actions by any of them (except to the extent resulting from the Escrow Agent's willful misconduct or gross negligence).
G. The parties acknowledge that Escrow Agent is acting solely as a stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties only with respect to the Xxxxxxx Money Deposit. If there is any dispute as to whether the Escrow Agent is obligated to deliver the Escrow Deposit and the or interest earned thereon (or as to the "ESCROWED FUNDS")party whom said Escrow Deposit and interest earned thereon is to be delivered, the Escrow Agent shall not be bound to release and deliver make any delivery, but in such event the Escrowed Funds to either party but may either (i) continue to Escrow Agent shall hold same until receipt by the Escrowed Funds until otherwise directed Escrow Agent of an authorization in a writing writing, signed by all the parties hereto having interest in such dispute, directing the disposition of same, or in the absence of such auth- orization the Escrow Agent shall hold the Deposit until the final determination of the rights of the parties in an appropriate proceeding. If such written authorization is not given, or proceedings for such determination are not begun within thirty (ii30) days of the Closing Date and diligently continued, the Escrow Agent may, but is not required to, bring an appropriate action or proceeding for leave to deposit the Escrowed Funds with Deposit in court pending such determination. The Escrow Agent shall be reimbursed for all costs and expenses of such action or proceeding including, without limitation, reasonable attorneys' fees and disbursements, by the clerk of any court of competent jurisdictionparty determined not to be entitled to the Deposit. Upon such depositmaking delivery of the Deposit in the manner herein provided, Escrow Agent will be released from all duties and responsibilities hereunder. the Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselno further liability hereunder.
(c) H. The Escrow Agent shall not be required has executed this Agreement in order to defend any legal proceeding which may be instituted against it with respect confirm that the Escrow Agent will hold the Deposit in escrow, pursuant to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesprovisions hereof.
Appears in 2 contracts
Samples: Sale Purchase Agreement (JMB Income Properties LTD Xi), Sale Purchase Agreement (JMB Income Properties LTD X)
Escrow. (a) Buyer will deliver the Escrowed Funds by wire transfer of immediately available funds to the Escrow Agent on the Closing Date, which shall be deposited into an interest-bearing escrow account (the “Escrow Account”) which shall be established pursuant to an escrow agreement (the “Escrow Agreement”), which Escrow Agreement (x) shall be entered into on the Closing Date among Buyer, the Sellers’ Representative and the Escrow Agent, and (y) shall be substantially in the form of Exhibit D attached hereto. The Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Adjustment Escrow Agent for the holding of escrow funds Amount until the earlier of (i) Final Adjustment Date and shall release the Closing, or (ii) the termination of this Agreement Adjustment Escrow Amount in accordance with any right hereunderthe provisions set forth in Sections 3.2(c) and (d). In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the The Escrow Agent to Purchaser. In will hold the event Indemnity Escrow Amount until the Closing occurs, Indemnity Survival Date and shall release the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price Indemnity Escrow Amount in the amount of the Xxxxxxx Money Deposit, accordance with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit provisions set forth in Article X (and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided thatSection 3.2, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000applicable).
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the The parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and for all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge Tax purposes that Escrow Agent is acting solely Buyer shall be treated as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice owner of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold and all interest and earnings earned from the investment and reinvestment of the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (iishall be allocable to Buyer pursuant to Section 468B(g) deposit of the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties Code and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselproposed Treasury Regulation Section 1.468B-8.
(c) The Escrow Agent shall not be required make quarterly distributions from the Escrow Account to defend any legal proceeding which may be instituted against it with respect Buyer (a “Tax Distribution”) intended to reimburse Buyer for Buyer’s income Tax Liabilities pertaining to the Escrowed Funds, . Such Tax Distribution shall be equal to 40% of the Property or interest and earnings from the subject matter investment and reinvestment of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility Escrowed Funds for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered quarterly period in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesquestion.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (WHITEWAVE FOODS Co)
Escrow. (a) Escrow Agent will hold For purposes of securing the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the ClosingSellers’ indemnification obligations under this Agreement, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to Closing Date the party entitled to Buyer will deposit the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by Escrow Amount with the Escrow Agent to Purchaserbe held in accordance with this Section 9.10 and the Escrow Agreement. Upon the Buyer’s determination that any Buyer Indemnified Party has suffered any indemnifiable Loss, the Buyer will promptly deliver a notice of such claim to the Seller Representative and the Escrow Agent. Unless within thirty (30) days after receipt of the such notice, the Buyer and the Escrow Agent receive a written objection from the Seller Representative disputing the claim, then, subject to the limitations set forth in this Article 9, the Buyer will be entitled to recover from escrow the amount set forth in the notice of the claim, and the Seller Representative and the Buyer will issue a joint written instruction letter to the Escrow Agent to distribute such amount to the applicable Buyer Indemnified Person. In the event the Closing occursSeller Representative timely objects in writing to the claim, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release will make no disbursements from escrow relating to such claim unless and until the Xxxxxxx Money Deposit Buyer and the Seller Representative have resolved the claim by mutual agreement, arbitration or litigation. The Buyer and the Seller Representative agree to either party until Escrow Agent has been requested by Seller or Purchaser act in good faith to release the Xxxxxxx Money Deposit and has given the other party resolve any disputed claim.
(b) No later than five (5) Business Days to dispute, or consent toafter the twelve-month anniversary of the Closing Date (the “Release Date”), the release Buyer and the Seller Representative will deliver a joint written instruction letter to the Escrow Agent instructing the Escrow Agent to pay and distribute to the Sellers any remaining portion of the Xxxxxxx Money DepositEscrow Amount unless any outstanding claim for indemnification under Section 9.2 is still pending and unresolved, provided that, if in which case an amount representing a reasonable quantification of the Closing occurs, the Xxxxxxx Money Deposit amount of indemnifiable Losses relating to any pending and interest thereon unresolved claim for indemnification under Section 9.2 will be applied as set forth above on retained by the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct(the “Retained Amount”), and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect balance paid to the Xxxxxxx Money Deposit and Sellers. Any Retained Amount will remain in the interest earned thereon (Escrow Account until released in satisfaction of an outstanding claim or paid to the "ESCROWED FUNDS"), Escrow Agent shall not be bound Sellers pursuant to release and deliver the Escrowed Funds to either party but may either (iSection 9.10(c) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselbelow.
(c) Escrow Agent shall not be required to defend If, following the Release Date, after final resolution and payment of each outstanding claim for indemnification, any legal proceeding which may be instituted against it Retained Amount with respect to such claim remains in escrow, no later than five (5) Business Days after the Escrowed Fundsdate of such final resolution and payment, the Property or Escrow Agent will pay and distribute to the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense Sellers all of such defense. remaining funds.
(d) Any amounts due and payable to the Buyer Indemnified Parties from the Sellers in respect of an indemnification claim made by the Buyer Indemnified Parties pursuant to this Article 9 can, in the event the amount then in remaining in escrow with the Escrow Agent shall not is insufficient to satisfy such indemnification claim, be required set off from any Earn-Out Payment due and payable to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or Sellers from the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesBuyer.
Appears in 2 contracts
Samples: Equity Interest Purchase Agreement, Equity Interest Purchase Agreement
Escrow. (a) Notwithstanding the provisions of Section 2.02, Purchaser shall deliver to the Escrow Agent will hold a portion of the Xxxxxxx Money Deposit Closing Cash Payment otherwise deliverable to Sellers pursuant to Section 1.02(a) equal to the sum of Thirty Five Million Dollars ($35,000,000) (the “Escrow Amount”). Of the Escrow Amount, (i) Ten Million Dollars ($10,000,000) shall secure Sellers’ obligation for the Working Capital adjustment described in Section 2.04 (the “Working Capital Escrow Amount”), and (ii) Twenty Five Million Dollars ($25,000,000) shall secure the indemnification and other obligations of the Seller Parties set forth in this Agreement and the other Transaction Agreements (the “General Escrow Amount”). In addition, at the Closing, Purchaser shall deliver to the Escrow Agent, on behalf of Sellers, the Notes in the original issue amount, to be held in escrow as provided below.
(b) The Escrow Amount shall be held in escrow (the “Escrow”) in accordance with the terms of an interest-bearing escrow agreement, substantially in the form attached hereto as Exhibit B (the “Escrow Agreement”). Any amount remaining of the Working Capital Escrow Amount after settlement of the Working Capital adjustment pursuant to Section 2.04 shall be released to the Sellers’ Representative (as nominee for the account of Trust 1 and for the type generally used account of Trust 2) upon such settlement as provided therein; and any amount remaining of the General Escrow Amount after settlement of the Seller Parties’ indemnification obligations pursuant to Article 10 shall be released to the Sellers’ Representative (as nominee for the account of Trust 1 and for the account of Trust 2) on the date that is twenty four (24) months after the Closing Date or on such later date as is necessary to resolve any disputes with respect to such amounts, except that any amounts retained after the date that is twenty four (24) months after the Closing Date shall only consist of those amounts which are necessary to satisfy the then pending claims for indemnification payable by the Seller Parties (assuming for these purposes only the validity of each such claim), with the remaining amounts released as aforesaid.
(c) The Notes delivered to the Escrow Agent as provided in Section 2.03(a) shall be held in the Escrow and shall be available for set-off pursuant to Section 10.08(b). Sellers shall have the right to convert their Notes into Common Stock pursuant to the terms of the Notes, in which case all such Common Stock shall be delivered to and held in the Escrow, and further shall have the right to sell any of such Common Stock held in the Escrow, provided, that upon any such sale 50% of the proceeds of such sale shall be delivered to and held in Escrow in lieu of such Common Stock to the extent so converted and 50% of such proceeds shall be released to the applicable Seller; provided, that in no event will the proceeds of any such sale held in Escrow pursuant to the foregoing provision exceed $75 million in the aggregate. Any remaining amount of the Notes, Common Stock or cash after settlement of the Seller Parties’ indemnification obligations pursuant to Article 10 shall be released to the Sellers’ Representative (as nominee for the holding account of escrow funds until Trust 1 and for the earlier account of Trust 2) on the date that is twenty four (24) months after the Closing Date or on such later date as is necessary to resolve any disputes with respect to such amounts, except that any amounts retained after the date that is twenty four (24) months after the Closing Date shall only consist of those amounts which are necessary (taking into consideration any cash amounts retained pursuant to paragraph (b) above) to satisfy the then pending claims for indemnification payable by the Seller Parties (assuming for these purposes only the validity of each such claim), with the remaining amounts released as aforesaid. For purposes of determining the number of shares of Common Stock required to satisfy a claim for indemnification, the value of the Common Stock into which all or any portion of the Notes are converted shall be deemed to be the higher of (i) the Closing, or price at which the Notes were converted into such Common Stock and (ii) the termination market price for such Common Stock prevailing at the time the securities are released to Purchaser in satisfaction of a claim; provided, that for purposes of the $175 million limit provided in Section 10.07(a) of this Agreement in accordance with any right hereunder. In Agreement, such value as so determined pursuant to the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall foregoing provisions will be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid such $175 million if and to the party entitled extent that shares of Common Stock are so used to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive satisfy a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, claim for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000indemnification.
(bd) With due regard to the limitations on liability contained in Article 10, nothing in this Agreement shall be construed as limiting any Seller Party’s liability for the Working Capital adjustment to the Working Capital Escrow Agent Amount or for Purchaser Losses to the General Escrow Amount and/or the Notes, nor shall not payments from the Escrow Amount be liable to any party considered as liquidated damages for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of breach under this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Transaction Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 2 contracts
Samples: Stock Purchase Agreement (FriendFinder Networks Inc.), Stock Purchase Agreement (FriendFinder Networks Inc.)
Escrow. 9.1 On the Completion Date, the Purchaser shall transfer that number of New OpenTV Shares (avalued at (Pounds)10.43 per share) Escrow Agent will hold which is equal to 15% of the Xxxxxxx Money Deposit in escrow in an interest-bearing Consideration payable on Completion on account of the type generally used Vendors in an amount equal to their proportionate Consideration to be registered in the name of, and be deposited with an escrow agent (the "Escrow Agent"), whose receipt shall be an absolute discharge therefor, such deposit to constitute the escrow fund (the "Escrow Fund") and to be governed by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance and the Escrow Agreement.
9.2 Such Escrow Shares together with any right hereundercash paid pursuant to clause 9.1 shall constitute the "Escrow Fund". In the event that the Purchaser has not terminated is entitled to recover any amount under this Agreement by agreement for an Agreed Claim, pursuant to clause 10.7 or pursuant to clause 19.2, the end Escrow Fund shall be used to satisfy the liabilities of the Evaluation Period, the Xxxxxxx Money Deposit Vendors.
9.3 The Escrow Fund shall continue to be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned held by the Escrow Agent until its termination which shall happen upon the latest to Purchaser. In occur of the event following:
9.3.1 one year after the Closing occursCompletion Date;
9.3.2 the date of the exhaustion of the Escrow Fund as a consequence of transfers to the Purchaser as a result of Agreed Claims; and
9.3.3 where the Purchaser has made a Notified Claim during the period one year after the Completion Date, the Xxxxxxx Money Deposit date when there is a final determination of whether such claim becomes an Agreed Claim and all interest accrued thereon will be released such claims (to Sellerthe extent that they, and in fact, become Agreed Claims) have been fully satisfied out of the Escrow Fund.
9.4 The Purchaser shall receive a credit against not unreasonably withhold its consent to the Purchase Price release of some of the Escrow Shares and cash in Pounds Sterling, if any, after the expiry of the date one year after the Completion Date if, in the amount Purchaser's reasonable opinion, the remaining Escrow Shares or cash held after such release are reasonably adequate to cover potential liabilities in relation to claims formerly notified. Any such Escrow Shares or cash released shall be dealt with pursuant to clause 9.5 as if they had been released upon a termination of the Xxxxxxx Money DepositEscrow Fund.
9.5 Upon the Escrow Fund terminating, with the interest. In all instances, Escrow Agent shall not release deliver to the Xxxxxxx Money Deposit Vendors all Escrow Shares and other property remaining in the Escrow Fund. Deliveries of Escrow Shares to either party until Vendors pursuant to this clause 9.5 and the Escrow Agent has been requested Agreement shall be made in proportion to their respective original contributions to the Escrow Fund.
9.6 All Notified Claims shall be resolved by Seller or Purchaser to release mutual agreement amongst the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release parties within 90 days of the Xxxxxxx Money Deposit, provided thatnotification, if the Closing occurspossible, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed failing which by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it arbitration in accordance with the advice rules of such counselthe London Court of International Arbitration, with the seat of arbitration in London, England.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 2 contracts
Samples: Principal Share Purchase Agreement (Opentv Corp), Principal Share Purchase Agreement (Opentv Corp)
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-interest bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation PeriodPeriod or as otherwise provided for in accordance with the terms and provisions of this Agreement, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to the Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with without the interest. In all other instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"“Escrowed Funds”), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) . I Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 2 contracts
Samples: Agreement of Sale and Purchase (Mack Cali Realty Corp), Agreement of Sale and Purchase (Mack Cali Realty Corp)
Escrow. 4.1 For the purpose of the transactions contemplated in this Agreement, the Parties agree to appoint JunZeJun Law Offices, as third party escrow agent (the “Escrow Agent”) and an Escrow Services Agreement will be signed simultaneously with the execution of this Agreement in a form and substance as set forth in Exhibit 4.1. The Escrow Services Agreement shall include a provision stating that (i) in the event Chengshan exercises the Chengshan Call Option, the Escrow Agent shall insert a number that is equal to 65% of the Option Price into the blank space in the definition of the Purchase Price under Section 1.2 of the Chengshan Equity Transfer Agreement as the Purchase Price, and shall fill in the dates of the Chengshan Equity Transfer Agreement, and the executed board resolutions and shareholder resolutions included in the Transaction Documents for Chengshan Group’s Purchase, and (ii) in the event Chengshan exercises the Chengshan Put Option or Cooper exercises the Cooper Option, then the Escrow Agent shall insert a number that is equal to 35% of the Option Price into the blank space in the definition of the Purchase Price under Section 1.2 of the Cooper Equity Transfer Agreement as the Purchase Price and shall fill in the dates of the Cooper Equity Transfer Agreement, and the executed board resolutions and shareholder resolutions included in the Transaction Documents for Xxxxxx’x Purchase.
4.2 Simultaneously with the signing of this Agreement, Chengshan and Cooper shall deliver executed copies of undated Transaction Documents for Chengshan Group’s Purchase, Transaction Documents for Xxxxxx’x Purchase, Withdraw Documents for Chengshan Group’s Purchase, Withdraw Documents for Xxxxxx’x Purchase, Unwinding Documents for Chengshan Group’s Purchase, and Unwinding Documents for Xxxxxx’x Purchase (each as defined below), in each case executed by all the parties thereto, to the Escrow Agent, to be held in escrow.
4.2.1 The following documents (collectively, the “Transaction Documents for Chengshan Group’s Purchase”) will be placed into escrow and released in accordance with Article 4.3.1 below:
(a) Escrow Agent will hold an agreement, in form and substance as the Xxxxxxx Money Deposit “Agreement for The Transfer of Equity Interest in escrow Xxxxxx Chengshan (Shandong) Tire Company Limited” attached hereto as Exhibit 4.2.1(a) (the “Chengshan Equity Transfer Agreement”) in an interest-bearing account connection with the purchase of Xxxxxx’x interest in CCT by Prairie;
(b) a TBR Offtake Agreement between CCT and CTB in the type generally used by Escrow Agent form and substance as set forth in Exhibit 4.2.1(b);
(c) a PCR Offtake Agreement between CCT and CTB in the form and substance as set forth in Exhibit 4.2.1(c);
(d) a termination agreement between CCT and CTB for the holding of escrow funds until Trademark License Agreement dated October 27, 2005 by and among CCT and CTB in the earlier of form and substance as set forth in Exhibit 4.2.1(d);
(e) a termination agreement between CCT and CTB for the Technical Assistance and Technology License Agreement dated October 27, 2005 by and among CCT and CTB in the form and substance as set forth in Exhibit 4.2.1(e);
(f) a termination notice from CTBX Company to CCT for the Secondment Agreement dated February 4, 2006 by and among CTBX Company and CCT in the form and substance as set forth in Exhibit 4.2.1(f);
(g) a patent and domain name assignment agreement between CCT and CTB in the form and substance as set forth in Exhibit 4.2.1(g);
(h) a transition service agreement in the form and substance as set forth in Exhibit 4.2.1(h);
(i) the Closingboard resolutions by Prairie and the board resolutions by Cooper approving the execution of Chengshan Equity Transfer Agreement; and
(j) a board resolution of CCT approving the transactions contemplating under the Chengshan Equity Transfer Agreement.
4.2.2 The following documents (collectively, the “Transaction Documents for Xxxxxx’x Purchase”) will be placed into escrow and released in accordance with Article 4.3.2 below:
(a) an agreement, in form and substance as the “Agreement for The Transfer of Equity Interest in Cooper Chengshan (Shangdong) Tire Company Limited” attached hereto as Exhibit 4.2.2(a) (the “Cooper Equity Transfer Agreement”, and, together with the Chengshan Equity Transfer Agreement, the “Equity Transfer Agreement”) in connection with the purchase of Chengshan’s interest in CCT by Cooper,
(b) a transition services agreement in the form and substance as set forth in Exhibit 4.2.2(b);
(c) a patent assignment agreement between CCT and Chengshan in the form and substance as set forth in Exhibit 4.2.2(c);
(d) a termination agreement in the form and substance as set forth in Exhibit 4.2.2(d);
(e) the shareholders’ meeting resolutions by Chengshan and the board resolutions by Cooper approving the execution of Cooper Equity Transfer Agreement; and
(f) a board resolution of CCT approving the transactions contemplating under the Cooper Equity Transfer Agreement.
4.2.3 The following documents (the “Withdraw Documents for Chengshan Group’s Purchase”) will be placed into escrow and released in accordance with Article 4.4:
(a) a Petition for Withdrawing the Application in the form and substance as set forth in Exhibit 4.2.3(a).
4.2.4 The following documents (the “Withdraw Documents for Xxxxxx’x Purchase”) will be placed into escrow and released in accordance with this Article 4.5:
(a) a Petition for Withdrawing the Application in the form and substance as set forth in Exhibit 4.2.4(a).
4.2.5 The following documents (the “Unwinding Documents for Chengshan Group’s Purchase”) will be placed into escrow and released in accordance with Article 4.6:
(a) an Application for Unwinding of the Approval in the form and substance as set forth in Exhibit 4.2.5(a).
4.2.6 The following documents (the “Unwinding Documents for Xxxxxx’x Purchase”) will be placed into escrow and released in accordance with Article 4.7:
(a) an Application for Unwinding of the Approval in the form and substance as set forth in Exhibit 4.2.6(a).
4.3 Upon the receipt by the Escrow Agent of either Chengshan’s Exercise Notice or Xxxxxx’x Exercise Notice, the Escrow Agent shall immediately release to the Parties original copies of the following documents:
4.3.1 if Chengshan exercises Chengshan’s Call Option, the Chengshan Equity Transfer Agreement (i.e., Article 4.2.1(a)) and the executed board resolutions included in the Transaction Documents for Chengshan Group’s Purchase (i.e., Article 4.2.1(i) and 4.2.1(j)); or
4.3.2 if Chengshan exercises Chengshan’s Put Option or Xxxxxx exercises Xxxxxx’x Option, the Xxxxxx Equity Transfer Agreement (i.e., Article 4.2.2(a)) and the executed board resolutions and shareholder resolutions included in the Transaction Documents for Xxxxxx’x Purchase (i.e., Article 4.2.2 (e) and 4.2.2 (f)).
4.4 Upon the receipt by the Escrow Agent of the Xxxxxx Withdraw Notice (as defined below), the Escrow Agent shall immediately release to Cooper original copies of the Withdraw Documents for Chengshan Group’s Purchase set out in Article 4.2.3.
4.5 Upon receipt by the Escrow Agent of the Chengshan Group Withdraw Notice (as defined below), the Escrow Agent shall immediately release to Chengshan original copies of the Withdraw Documents for Xxxxxx’x Purchase set forth in Section 4.2.4.
4.6 Upon receipt by the Escrow Agent of the Xxxxxx Unwinding Notice (as defined below), the Escrow Agent shall immediately release to Cooper original copies of the Unwinding Documents for Chengshan Group’s Purchase set forth in Section 4.2.5.
4.7 Upon receipt by the Escrow Agent of the Chengshan Group Unwinding Notice(as defined below), the Escrow Agent shall immediately release to Chengshan original copies of the Unwinding Documents for Xxxxxx’x Purchase set forth in Section 4.2.6.
4.8 The Party that is purchasing the other Party’s equity interest in CCT shall provide such other Party and the Escrow Agent written notice indicating that the conditions for Closing (as defined in the applicable Equity Transfer Agreement) set forth in Article 2 of the applicable Equity Transfer Agreement have been satisfied (other than those conditions that by their nature are to be satisfied at the Closing (as defined in the applicable Equity Transfer Agreement), but subject to the fulfillment or waiver of those conditions), within 5 business days (which shall not be subject to the Cure Period) of the satisfaction of such conditions. Such notice shall include a copy of CCT’s newly issued business license reflecting the transfer of equity. Upon the receipt of such written notice, the Escrow Agent shall release simultaneously with the closing of the equity transfer transaction contemplated in the applicable Equity Transfer Agreement the original copies of all the remaining documents from either the Transaction Documents for Chengshan Group’s Purchase, in the event that Prairie is the purchaser, or the Transaction Documents for Xxxxxx’x Purchase, in the event that Xxxxxx is the purchaser, to Chengshan and Xxxxxx.
4.9 Upon the earliest of (a) both Chengshan and Xxxxxx failing to properly exercise Chengshan’s Option or Xxxxxx’x Option, as applicable, before all such Options expire pursuant to the terms of this Agreement, (b) written notice from Xxxxxx or Chengshan if the Option Commencement Date has not occurred on or before the Option Commencement Deadline, (c) written instructions from Xxxxxx and Chengshan, (d) 10 calendar days after release by the Escrow Agent of the documents in Article 4.8, or (iie) the termination of this Option Agreement in accordance with any right hereunder. In Article 6, the event Purchaser has Escrow Agent shall destroy all other remaining Transaction Documents for Chengshan Group’s Purchase, Transaction Documents for Xxxxxx’x Purchase, Withdraw Documents for Chengshan Group’s Purchase, Withdraw Documents for Xxxxxx’x Purchase, Unwinding Documents for Chengshan Group’s Purchase, and Unwinding Documents for Xxxxxx’x Purchase which have not terminated been previously released.
4.10 For the purpose of this Agreement by Article 4, the end release of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned documents by the Escrow Agent to Purchaser. In Xxxxxx or Chengshan shall be delivered to the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to disputefollowing addresses, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied to such other address as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered hereafter designated in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed writing on seven (7) days’ notice by the proper parties.relevant Party: CHENGSHAN Address: Xx. 00, Xxxxxxx Xxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, PRC Tel: 0000-0000000 Fax: 0000-0000000 Attn: Xxxxxxx Xxx XXXXXX Address: x/x Xxxxx Xxx 00xx Xxxxx, Xxxxx World Office 1, Xx.0, Xxxxxxxxxxxxx Xxxxxx, Xxxxxxx, 000000, Xxxxx. Tel: 0000-00000000 Fax: 0000-00000000 Attn: Partner-in-Charge
Appears in 2 contracts
Samples: Option Agreement, Option Agreement (Cooper Tire & Rubber Co)
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) At the Closing, or Buyer will deposit the Escrow Amount, without any act of Seller, with the Escrow Agent, such deposit to constitute an escrow fund (iithe “Escrow Fund”) to be governed by the termination of this Agreement terms set forth herein. The Escrow Cash may be invested as jointly directed in accordance with any right hereunderwriting by Buyer and Seller from time to time. In the event Purchaser has not terminated this Agreement by the end absence of the Evaluation Periodjoint written instructions, the Xxxxxxx Money Deposit Escrow Cash shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned invested by the Escrow Agent in a U.S. Bank, National Association, money market deposit account, as more fully described on Exhibit L hereto. Any interest, earnings and income (including dividends and other distributions in respect of the Escrow Shares) that accrue on the Escrow Amount during the period of time during which the Escrow Amount is held in the Escrow Fund shall be deemed to Purchaser. In be part of the event Escrow Fund; provided, however, that Buyer shall be required to report and pay the Closing occursTaxes due on such interest, earnings and income, unless, and until, the Xxxxxxx Money Deposit and all interest accrued thereon will be Escrow Fund (or any portion thereof) is paid or released to Seller, and Purchaser shall receive a credit against the Purchase Price Seller in the amount of the Xxxxxxx Money Deposit, accordance with the interestterms of this Agreement. In all instancesThe Escrow Shares shall be appropriately adjusted for stock splits, Escrow Agent shall not release recapitalizations, combinations and the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested like consummated by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000Buyer.
(b) Subject to the following requirements, the Escrow Fund shall remain in existence through and until that date that is 365 days following the Closing Date (the “Escrow Period”). Upon the expiration of the Escrow Period, and within ten (10) business days thereafter, any and all Escrow Cash and/or Escrow Shares remaining in the Escrow Fund shall be released from the Escrow Fund to Seller after accounting for (i) all amounts theretofore validly distributed out of the Escrow Fund to the Indemnified Parties pursuant to this Article IX and (ii) the retention of an amount of Escrow Cash and Escrow Shares equal, in the aggregate, to such portion of the remaining Escrow Fund which, subject to the objection of the Indemnifying Parties and the subsequent arbitration of the matter in a manner consistent with this Article IX, is necessary to satisfy any unsatisfied claims specified in any Damages Certificate (as defined in Section 9.4(c)) delivered to the Indemnifying Parties prior to the end of the Escrow Period, which amount shall remain in the Escrow Fund (and the Escrow Fund shall remain in existence) until such claims have been resolved. As soon as such claims have been resolved (such resolution to be evidenced by the written agreement of Buyer and the Indemnifying Parties or the written decision of the arbitrators as described below), and within two (2) business days thereafter, the Escrow Agent shall deliver to Seller the remaining portion of the Escrow Fund not be liable required to satisfy any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all remaining claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) In the event that any Indemnified Party has incurred or sustained Damages or reasonably anticipates that it will incur or sustain Damages, the Indemnified Party shall deliver to the Indemnifying Parties a certificate signed by any officer of the Indemnified Party (a “Damages Certificate”) (A) stating that the Indemnified Party has incurred or sustained Damages or reasonably anticipates that it could incur or sustain Damages and (B) specifying in reasonable detail the individual items of Damages included, and a good faith estimate of the amount of such Damages, or the basis for such anticipated liability.
(d) The Indemnifying Parties shall have twenty (20) days following their receipt of a Damages Certificate to object to any claim or claims made in a Damages Certificate. In the event that the Indemnifying Parties have not objected within such twenty (20) day period to a Damages Certificate, then the Escrow Agent shall not remit to the Indemnified Party an amount of Escrow Cash and a number of Escrow Shares that in the aggregate are equal to the amount set forth in such Damages Certificate and the Escrow Fund shall be required reduced by such amount (it being agreed that (i) such remittance shall first be paid out of available Escrow Cash before Escrow Shares are used and (ii) the Escrow Shares shall be valued at a per share amount equal to defend any legal proceeding the closing price of Parent Common Stock as reported on the New York Stock Exchange on (A) if no Objection Certificate shall be delivered, the last day of the twenty (20) day period referred to in this Section 9.4(d), (B) if an Objection Notice is delivered and the parties resolve such objection pursuant to Section 9.4(e) within the fifteen (15) day period referred to in Section 9.4(e), the last day of such fifteen (15) day period or (C) if an Objection Notice is delivered and the parties submit such objection to arbitration pursuant to Section 9.4(e), the date of the arbitrator’s written decision referred to in Section 9.4(e)) (as appropriately adjusted for Parent stock splits, recapitalizations, combinations and the like). In the event that the Indemnifying Parties so object within such twenty (20) day period, such objection must be in the form of a certificate signed by the Indemnifying Party or its authorized member or manager and delivered to the Indemnified Party (an “Objection Certificate”), which may be instituted against it certificate shall set forth the item or items of Damages in the Damages Certificate to which the Indemnifying Parties are objecting and a reasonable basis for each such objection.
(e) For a period of fifteen (15) days after the delivery of an Objection Certificate, the Indemnified Party and the Indemnifying Parties shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims as are objected to therein. If such an agreement is reached as to all or any portion of the Escrowed FundsDamages that are subject to the Objection Certificate, then a letter setting forth such agreement shall be prepared and signed by both parties and, where an Indemnified Party is entitled to be compensated from the Escrow Fund, shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such letter. If no such agreement can be reached after good faith negotiation during such 15-day period, either the Indemnifying Parties or the Indemnified Parties may make a written demand for arbitration of the matter no later than 30 days after the expiration of such 15-day period unless the amount of the damage or loss is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and in either such event the matter shall be settled by arbitration conducted by one arbitrator mutually agreeable to the Indemnifying Parties and the Indemnified Parties. In the event that within 20 days after submission of any dispute to arbitration the Indemnifying Parties and the Indemnified Parties cannot mutually agree on one arbitrator, the Property Indemnifying Parties and the Indemnified Parties shall each select one arbitrator, and the two arbitrators so selected shall select a third arbitrator. The arbitrator or arbitrators shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the parties an opportunity, adequate in the sole judgment of the arbitrator or a majority of the three arbitrators, as the case may be, to discover relevant information from the opposing parties about the subject matter of this Agreement unless requested the dispute. The arbitrator or a majority of the three arbitrators, as the case may be, shall rule upon motions to do so by Purchaser compel or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind limit discovery and shall have no responsibility for the genuineness authority to impose sanctions, including reasonable legal fees and costs, to the same extent as a competent court of law or equity, should the arbitrator or a majority of the three arbitrators, as the case may be, determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator or a majority of the three arbitrators, as the case may be, as to the validity and amount of any document or other item deposited with it or the collectibility of any check delivered claim objected to in connection with this Agreement. Escrow Agent such Objection Certificate shall be fully protected binding and conclusive upon the parties. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator(s).
(f) Judgment upon any award rendered by the arbitrators may be entered in acting any court having jurisdiction. Any such arbitration shall be held in Austin, Texas, under the rules then in effect of the American Arbitration Association. The payment of all fees and expenses of the parties to any such arbitration, as well as the fees of the arbitrator(s) and the administrative fee of the American Arbitration Association, shall be payable in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesSection 11.10.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (SolarWinds, Inc.)
Escrow. (a) The Escrow Deposit and Additional Escrow Deposit shall be commingled and deposited by the Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing bearing, attorney trust account of the type generally used in a bank reasonably selected by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement to be maintained and disbursed in accordance with any right hereunderthe provisions hereof. In If, prior to expiration of the event Purchaser Inspection Period, as such term is defined in paragraph 7(a) of this Agreement, the Escrow Agent receives the Inspection Termination together with the Inspection Report(s), as such terms are defined in paragraph 7(a) of this Agreement, then within five (5) days of receipt thereof, the Escrow Agent shall refund the Escrow Deposit and Additional Escrow Deposit together with one-half (1/2) of the interest accrued thereon, to the Buyer. If, upon expiration of the Inspection Period, as such term is defined in paragraph 7(a) of this Agreement, the Escrow Agent has not terminated this Agreement by received the end Inspection Termination and/or Inspection Report(s) then and in that event, the Escrow Agent shall continue to hold the Escrow Deposit and Additional Escrow Deposit in escrow for the benefit of the Evaluation Seller, subject to the right of the Buyer to have the Escrow Deposit and Additional Escrow Deposit returned to the Buyer, only if, prior to expiration of the Environment Due Diligence Period, as defined in paragraph 7(b) of this Agreement, or Extended Environmental Due Diligence Period, if applicable, as defined in paragraph 7(b)(i) of this Agreement, the Escrow Agent has received the Environmental Termination, together with the Environmental Certification and Environmental Study (all as defined in paragrpah 7(b) of this Agreement). If, prior to expiration of the Environmental Due Diligence Period, or prior to expiration of the Extended Environmental Due Diligence Period, if applicable, the Escrow Agent receives the (Final) Environmental Certification, (Final) Environmental Study and the (Final) Environmental Termination as defined in paragraph 7(b) or 7(b)(i), if applicable, of this Agreement, then within five (5) days of receipt thereof, the Escrow Agent shall refund the Escrow Deposit and Additional Deposit together with one-half (1/2) of the interest accrued thereon to the Buyer. If, upon expiration of the Environmental Due Diligence Period or Extended Environmental Due Diligence Period, the Xxxxxxx Money Deposit shall be non-refundable to PurchaserEscrow Agent has not received the Inspection Termination together with the Inspection Reports, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the then within five (5) days after expiration of the Evaluation Environmental Due Diligence Period or the Extended Environmental Due Diligence Period, the Xxxxxxx Money Escrow Agent shall deliver the Escrow Deposit and all Additional Escrow Deposit together with one-half (1/2) of the interest accrued thereon will be returned by to the Escrow Agent to Purchaser. In Seller.
(b) Without the event consent of the Closing occursBuyer and Seller, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Escrow Deposit to either any party. In the event that any party until requests in writing that the Escrow Agent has been requested by Seller or Purchaser deliver the Escrow Deposit and/or the Additional Escrow Deposit to release such party, the Xxxxxxx Money Deposit and has given Escrow Agent shall make a written request for the consent of the other party five (5) Business Days and in such written request notify such party that unless an objection is made in writing to dispute, or consent to, the release of the Xxxxxxx Money Escrow Deposit and/or the Additional Escrow Deposit, provided that, if within ten (10) days of the Closing occursnon-consenting party's receipt of such notice, the Xxxxxxx Money Escrow Deposit and interest thereon and/or the Additional Escrow Deposit will be applied released to the party requesting the Escrow Deposit and/or Additional Escrow Deposit. If the Escrow Agent receives a written objection to the release of the Escrow Deposit and/or the Additional Escrow Deposit, the Escrow Agent shall make no disbursement of the Escrow Deposit and/or the Additional Escrow Deposit until so authorized in a writing, signed by both the Buyer and Seller or by a final non-appealable order of a court of competent jurisdiction, and in either of such events, Escrow Agent shall then disburse the Escrow Deposit and/or the Additional Escrow Deposit in accordance with the notice or the order, as set forth above on applicable. No fee or other charges shall be payable to Escrow Agent by the Closing DateBuyer unless an interpleader is filed by Escrow Agent, in which event Buyer shall pay such fees as directed by the Court. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any either party hereunder for any act undertaken in good faith and without fraud or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewithon its part. The parties acknowledge that the Escrow Agent is acting in this capacity solely as a stakeholder for their mutual conveniencethe convenience of the parties. In the event of any conflict, the Escrow Agent receives written notice of a dispute between the parties may institute an interpleader action with respect to the Xxxxxxx Money Escrow Deposit and/or the Additional Escrow Deposit. The parties acknowledge and agree that notwithstanding the interest earned thereon (Escrow Agent's role as Escrow Agent, that the "ESCROWED FUNDS"), Escrow Agent shall not be bound is counsel to release the Seller and deliver the Escrowed Funds to either party but may either (i) continue to hold be counsel to the Escrowed Funds until otherwise directed Seller in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk event of any court of competent jurisdiction. Upon such depositdispute, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect including litigation relating to the Escrowed Funds, the Property Escrow Deposit and/or Additional Deposit or the subject matter of this Agreement unless requested relating to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesmatter.
Appears in 2 contracts
Samples: Sale Agreement (Cunningham Graphics International Inc), Sale Agreement (Cunningham Graphics International Inc)
Escrow. (a) At the Closing, U.S. Buyer shall deposit or cause to be deposited an amount equal to the Escrow Agent will hold the Xxxxxxx Money Deposit in escrow Amount in an interestescrow account mutually established by the Parties at Deutsche Bank (the “Escrow Agent”). Such escrow account will be established pursuant to an escrow agreement in a form reasonably agreed to by the Parties (the “Escrow Agreement”) with the costs thereof to be borne one-bearing account of the type generally used half by Escrow Agent Seller and one-half by Buyers. All Parties hereto agree for the holding of escrow funds until the earlier of all tax purposes that: (i) the Closingright of Seller to the Escrow Fund shall be treated as deferred purchase price eligible for installment sale treatment under Section 453 of the Internal Revenue Code of 1986, as amended (the “Code”) and any corresponding provision of foreign, state or local law, as appropriate; (ii) Buyers shall be treated as the termination owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to Buyers pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iii) if and to the extent any amount of the Escrow Fund is actually distributed to Seller, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (iv) in no event shall the total amount of the Escrow Fund (including any interest and earnings earned thereon) paid to Seller under this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement exceed an amount to be designated by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable Seller prior to Purchaser, but shall be credited against the Purchase Price at the Closing. Clause (iv) of the preceding sentence is intended to ensure that the right of Seller to the Escrow Fund and any interest and earnings earned thereon is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. All interest earned on parties hereto shall file all Tax Returns consistently with the Xxxxxxx Money Deposit foregoing. Buyers shall be paid to the party entitled to receive quarterly distributions from the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior Escrow Fund in an amount equal to the expiration 40% of the Evaluation Period, the Xxxxxxx Money Deposit interest and all interest accrued thereon will be returned by the Escrow Agent earnings which are allocable to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released Buyers pursuant to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or clause (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselabove.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 2 contracts
Samples: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement (Ariba Inc)
Escrow. (a) As long as there are Indemnity Escrow Amounts validly held in the Indemnity Escrow Account, any and all Losses payable by any Seller Indemnifying Party pursuant to this Article 10 may be paid out of the Indemnity Escrow Account. Upon the determination that any such payment is due to a Buyer Indemnified Party and the delivery of written notice from the Buyer of its election to recover such amount from the Indemnity Escrow Account, the Buyer and the Seller shall execute and deliver a joint written instruction to the Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by directing the Escrow Agent to Purchaser. In release such amount from the event Indemnity Escrow Account to the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000Buyer.
(b) Promptly following the date that is twelve (12) months after the Closing Date (the “Release Date”), the Buyer and the Seller shall execute and deliver a joint written instruction to the Escrow Agent shall not be liable directing the Escrow Agent to release any party for remaining portion of the Indemnity Escrow Amount to the Seller, less any act amounts that are subject to pending claims made by any Buyer Indemnified Party under this Article 10 prior to 11:59 p.m. on the Release Date. If any claim made by any Buyer Indemnified Party under this Article 10 is still pending as of the Release Date, the Escrow Agent, pursuant to the terms of the Escrow Agreement, will retain a portion of the Escrow Amount in an amount equal to the Losses identified in any unresolved notice delivered pursuant to the Escrow Agreement until such claim has been satisfied or omissionotherwise resolved, except for bad faith, gross negligence or willful misconduct, at which point Buyer and the parties agree Seller shall execute and deliver a joint written instruction to indemnify the Escrow Agent and hold directing the Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to release to the Xxxxxxx Money Deposit and Seller any remaining balance of the interest earned thereon (Escrow Amount not used to satisfy the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver indemnification rights of the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselBuyer Indemnified Party under this Article 10.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Wireless Telecom Group Inc), Membership Interest Purchase Agreement (R F Industries LTD)
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon Fund A will be returned held by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party no later than five (5) Business Days after the Settlement Date, subject to disputethe terms of the Escrow Agreement, or consent toand will be disbursed, solely for the purposes and in accordance with the terms of this Agreement and the Escrow Agreement, as follows:
(i) in the event that the Closing Cash Difference is owed by Seller, (i) to Buyer, in an amount equal to the lesser of (A) Escrow Fund A and (B) the sum of the Closing Cash Difference plus the Final Retention Incentive Plan Amount, and (ii) to Seller, the release balance, if any, of Escrow Fund A not otherwise distributed to Buyer;
(ii) in the event that the Closing Cash Difference is owed by Buyer, (i) to Seller, the amount equal to the lesser of (A) Escrow Fund A and (B) the total of the Xxxxxxx Money DepositClosing Cash Difference plus Escrow Fund A less the Final Retention Incentive Plan Amount, provided thatand (ii) to Buyer, the balance, if any, of Escrow Fund A not otherwise distributed to Seller; or
(iii) in the event that the Closing occursCash Difference is equal to zero, (i) to Buyer, the Xxxxxxx Money Deposit lesser of (A) Escrow Fund A and interest thereon will be applied as set forth above on (B) the Closing Date. Purchaser represents that its tax identification numberFinal Retention Plan Amount, for purposes and (ii) to Seller, the balance, if any, of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000Escrow Fund A not otherwise distributed to Buyer.
(b) The Stay Bonus/CIC Amount will be held by the Escrow Agent shall not be liable until no later than thirty (30) days after the eighteen (18) month anniversary of the Closing Date, subject to any party for any act or omission, except for bad faith, gross negligence or willful misconductthe terms of the Escrow Agreement, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties disbursed, solely for the purposes and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter terms of this Agreement unless requested and the Escrow Agreement, as follows:
(i) if (A) any Banner Company incurs an obligation to do so by Purchaser pay a stay bonus pursuant to any Change of Control Agreement Amendment or (B) Seller and is indemnified owes any amount to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting Buyer in accordance with Section 7.21, Buyer may certify in writing to Seller such amounts owed. Unless Seller objects in writing to such certification within five (5) Business Days after receipt thereof, such certification shall be deemed final, and Buyer and Seller shall instruct the Escrow Agent to disburse to Buyer, the amount so certified. If Seller so objects to such certified amount, Seller and Buyer shall promptly endeavor in good faith to resolve any written instructions given such objection for a period of fifteen (15) days and if no resolution is reached thereafter, the objection shall be resolved by an Independent Accounting Firm in accordance with the dispute resolution procedures set forth in Section 2.3. Upon such resolution, Seller and Buyer shall jointly instruct the Escrow Agent to it hereunder disburse to Buyer, the portion of the Stay Bonus/CIC Amount to which Buyer is entitled, as determined through such resolution;
(ii) within five (5) Business Days after the eighteen (18) month anniversary of the Closing Date, Buyer shall certify in writing to Seller the aggregate amount of all stay bonuses owing by the Banner Companies pursuant to the Change of Control Agreement Amendments which have not been paid as of such date and believed by it to the aggregate amount of all claims that have been signed by made alleging the proper parties.Banner Companies’ failure to pay any such stay bonuses when
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Patheon Inc)
Escrow. Buyer and Seller authorize____________________________________________________________________________________ Telephone: Facsimile: Address:____________________________________________________________________________________________________________ to act as “Escrow Agent” to receive funds and other items and, and subject to clearance, disburse them in accordance with the terms of this Contract. Escrow Agent will deposit all funds received in a q non-interest bearing escrow account q an interest bearing escrow account with interest accruing to with interest dispersed (check one) q at closing q at intervals. If Escrow Agent receives conflicting demands or has a good faith doubt as to Escrow Agent’s duties or liabilities under this Contract, he/she may (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account subject matter of the type generally used by Escrow Agent for the holding of escrow funds until the earlier parties mutually agree to its disbursement or until issuance of (i) a court order or decision of arbitrator determining the Closing, parties’ rights regarding the escrow or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds subject matter of the escrow with the clerk of any the circuit court of competent jurisdictionhaving jurisdiction over the dispute. Upon notifying the parties of such depositaction, Escrow Agent will be released from all duties and responsibilities hereunderliability except for the duty to account for items previously delivered out of escrow. If a licensed real estate broker, Escrow Agent shall have the right to consult will comply with separate counsel applicable provisions of its own choosing (if it deems such consultation advisable) and shall not be liable for Chapter 475, Florida Statues. In any action taken, suffered suit or omitted by it arbitration in accordance with the advice of such counsel.
(c) which Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property is made a party because of acting as agent hereunder or interpleads the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defenseescrow. Escrow Agent shall will recover reasonable attorney’s fees and costs at all levels, with such fees and costs to be paid from the escrowed funds or equivalent and charged and awarded as court or other costs in favor of the prevailing party. The parties agree that Escrow Agent will not be required liable to institute legal proceedings any person for misdelivery to Buyer or Seller of any kind and shall have no responsibility for escrowed items, unless the genuineness misdelivery is due to Escrow Agent’s willful breach of this Contract or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesgross negligence.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (GeoPharma, Inc.), Purchase and Sale Agreement (Dynamic Health Products Inc)
Escrow. Licensee has deposited with Citibank N.A., New York, New York (the "Escrow Agent") into an escrow account (the "Escrow Account"), the Minimum fee for the 12-month period commencing on August 16, 2000 and ending August 15, 2001. The Agreement among the parties and Citibank N.A. by which the Escrow Account was set up is referred to as the "Escrow Agreement." Commencing on August 16, 2000 and the 16th day of November, February and May thereafter during the Term, (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interestportion of Minimum fee for the forthcoming three-bearing account month period shall be paid to Licensor, without any requirement for notice to Licensee, out of the type generally used by Escrow Agent for Account in accordance with the holding terms of escrow funds until the earlier of (i) the Closing, or (ii) the termination Section 5.2 of this Agreement and the Escrow Agreement, and (b) the Licensee shall deposit into the Escrow Account an amount equal to the portion of Minimum fee for the quarter commencing one year after the date such deposit into the Escrow Account is to be made, such that the Escrow Account shall always contain the Minimum fee due to Licensor for the ensuing 12-month period. The parties shall cause the escrow agent to invest the funds held in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closingescrow as mutually agreed. All interest earned on the Xxxxxxx Money Deposit amount in escrow, after payment of the fees of the escrow agent, shall be paid to the party entitled Licensee. Licensee shall continue to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by deposit sums into the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price Account in the amount of the Xxxxxxx Money Deposit, accordance with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, Section 5.2 and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claimsAgreement, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either unless (i) continue Licensor is subject to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or Bankruptcy, (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such depositLicensee has been issued an arbitral award stating that Licensor is in Default as provided in Section 7.2, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing or (if it deems such consultation advisableiii) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have has been signed by the proper partiesterminated as herein provided.
Appears in 2 contracts
Samples: License Agreement (International Sports Wagering Inc), License Agreement (International Sports Wagering Inc)
Escrow. (a) Concurrently with the execution and delivery of this Agreement, Parent and the Company have entered into an escrow agreement, in the form attached hereto as Exhibit F (the “Escrow Agent will hold Agreement”), with Wilmington Trust, National Association, as escrow agent (the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by “Escrow Agent for the holding of escrow funds until the earlier of Agent”), pursuant to which, among other things, Parent shall (i) concurrently with the Closing, or (ii) the termination execution and delivery of this Agreement Agreement, deposit an amount in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable cash equal to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned $10,000,000 into a segregated escrow account established by the Escrow Agent (the “Escrow Account”) and (ii) subsequent to Purchaser. In the event execution and delivery of this Agreement, deposit amounts in cash into the Closing occursEscrow Account such that, on or before 5:00 p.m. Central Time on January 23, 2024, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price aggregate funds contained in the amount Escrow Account as of such time is equal to $20,000,000 (the Xxxxxxx Money Deposit“Full Escrow Funding”), with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification numberin each case, for purposes the purpose of reporting the interest earningsfunding Parent’s obligations under this Agreement, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000including Section 8.3(b)(iv).
(b) Distributions of funds contained in the Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon Account (the "ESCROWED FUNDS"), “Escrow Agent Funds”) shall not be bound to release and deliver the Escrowed Funds to either party but may either occur as follows:
(i) continue to hold if the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit Effective Time occurs and the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it transactions contemplated hereby are consummated in accordance with the advice terms hereof, Parent and the Company shall deliver join written instructions to the Escrow Agent instructing the Escrow Agent to distribute from the Escrow Account all of the Escrow Funds, by wire transfer of immediately available funds to the account(s) designated in such instructions, to the Paying Agent for the inclusion of such counselEscrow Funds in the Payment Fund (and, for the avoidance of doubt, the Escrow Funds will be deemed to be a part of the Payment Fund upon receipt by the Paying Agent);
(ii) if this Agreement is terminated in accordance with the terms hereof the Company is entitled to receive the Closing Failure Fee in accordance with Section 8.3(b)(iv), then the Company and Parent shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to distribute from the Escrow Account all of the Escrow Funds, by wire transfer of immediately available funds to the account(s) designated in such instructions, to the Company in satisfaction of Parent’s obligations under Section 8.3(b)(iv); and
(iii) if this Agreement is terminated in accordance with the terms hereof and the Company is not entitled to receive the Closing Failure Fee in accordance with Section 8.3(b)(iv), then the Company and Parent shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to distribute from the Escrow Account all of the Escrow Funds, by wire transfer of immediately available funds to the account(s) designated in such instructions, to Parent (or its designee).
(c) The Escrow Funds shall be held by the Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder the Escrow Agreement. Distributions of the Escrow Funds shall be made as provided in this Section 8.4 and believed by it to have been signed by the proper partiesEscrow Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Battalion Oil Corp), Merger Agreement (Battalion Oil Corp)
Escrow. (a) The Downpayment shall be held by Escrow Agent, in trust, on the terms hereinafter set forth:
3.1. Escrow Agent will hold shall deposit the Xxxxxxx Money Deposit in escrow in an interestinterest bearing day of deposit-bearing account day of withdrawal bank account, with a Federally insured financial institution.
3.2. Escrow Agent shall not commingle the Downpayment with any other funds of Escrow Agent or others and shall promptly advise Purchaser and Seller of the type generally used by number of any bank account in which the Deposit has been deposited.
3.3. If the Closing takes place under this Agreement, then Escrow Agent for shall disburse the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned Downpayment on the Xxxxxxx Money Deposit shall be paid Closing Date to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, Seller and Purchaser shall receive a credit against the Purchase Price in an amount equal to the amount Downpayment.
3.4. If this Agreement is terminated in accordance with the terms hereof or if the Closing does not take place under this Agreement by reason of the Xxxxxxx Money Depositfailure of Purchaser or Seller to comply with its obligations hereunder, with then Escrow Agent shall pay the interest. In all instancesDownpayment as required by the terms of this Agreement, provided, however, that notwithstanding the foregoing, Escrow Agent shall not release pay over the Xxxxxxx Money Deposit Downpayment to either any party hereunder unless and until the following procedure is complied with: The party requesting disbursement of the Downpayment (the “Requesting Party”) shall deliver notice to Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the all other party parties hereto requesting such disbursement. Within five (5) Business Days days after receipt of such notice of request, Escrow Agent shall deliver notice to dispute, or consent toall other parties hereto stating that the Requesting Party has requested such disbursement (and including a copy of the Requesting Party’s notice). Within ten (10) days after receipt of Escrow Agent’s notice, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00non-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
requesting party shall either: (a) agree to permit such disbursement by Escrow Agent or (b) inform Escrow Agent that the non-requesting party does not agree to permit such disbursement. If the non-requesting party acts under clause (a), then Escrow Agent shall make the disbursement as requested by the Requesting Party. If the non-requesting party acts under clause (b), then Escrow Agent shall not make any disbursement except as provided in Section 3.6 below. If the non-requesting party fails to respond during the foregoing ten (10) day period, same shall be liable deemed to any be the response of the non-requesting party under clause (a) on the last day of such ten (10) day period.
3.5. It is agreed that the duties of Escrow Agent are only as herein specifically provided, and, subject to the provisions of Section 3.6 hereof, are purely ministerial in nature, and that Escrow Agent shall incur no liability whatever except for willful misconduct or gross negligence, as long as Escrow Agent has acted in good faith. Seller and Purchaser each release Escrow Agent from any act done or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree omitted to indemnify be done by Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewithgood faith in the performance of its duties hereunder.
3.6. The parties acknowledge that Escrow Agent is acting solely as a stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties only with respect to the Xxxxxxx Money Deposit and Downpayment. If there is any dispute as to whether Escrow Agent is obligated to deliver the interest earned thereon (Downpayment as to whom the "ESCROWED FUNDS")Downpayment is to be delivered, Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party make any delivery, but may either (i) continue to in such event Escrow Agent shall hold the Escrowed Funds same until otherwise directed receipt by Escrow Agent of an authorization in a writing writing, signed by all the parties hereto or (ii) deposit having an interest in such dispute, directing the Escrowed Funds with disposition of same, or, in the clerk absence of any court of competent jurisdiction. Upon such depositauthorization, Escrow Agent will be released from all duties shall hold the Downpayment until the final determination of the rights of the parties in an appropriate proceeding. If such written authorization is not given, or proceedings for such determination are not begun within thirty (30) days after the Closing Date and responsibilities hereunder. diligently continued, Escrow Agent shall have may bring an appropriate action or proceeding for leave to deposit the right to consult with separate counsel of its own choosing (if it deems Downpayment in court pending such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreementdetermination. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder reimbursed for all costs and believed by it to have been signed expenses of such action or proceeding including, without limitation, reasonable attorneys’ fees and disbursements, by the proper partiesparty determined not to be entitled to the Downpayment. Upon making delivery of the Downpayment in the manner herein provided, Escrow Agent shall have no further liability hereunder.
3.7. Escrow Agent has executed this Agreement in order to confirm that Escrow Agent has received the Deposit, and that Escrow Agent will hold the Downpayment in escrow, pursuant to the provisions hereof.
3.8. Purchaser shall pay any and all costs and expenses incurred by Escrow Agent as a result of this transaction.
Appears in 2 contracts
Samples: Sale Purchase Agreement, Sale Purchase Agreement (CBRE Realty Finance Inc)
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) In order to ensure that the Closing, or Surviving Bank and its successors (ii) the termination of this Agreement including without limitation Cowlitz Bank in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by of a Subsequent Merger) shall be properly reimbursed for certain losses, the end Exchange Agent shall, promptly upon receipt of the Evaluation PeriodAggregate Merger Consideration, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the deliver an amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS") equal to One Million Dollars ($1,000,000), to an escrow agent (the "ESCROW AGENT") to be held in escrow (the "ESCROW") pursuant to an escrow agreement in substantially the form attached hereto as Exhibit 3.2, with such changes as may be reasonably requested by the Escrow Agent and subject to the addition of Schedule 2 to the Escrow Agreement in accordance with this Section 3.2(b) (the "ESCROW AGREEMENT"). The Escrow Agent shall not be bound a bank, trust company or other entity mutually agreed upon by Cowlitz Bank and Northern. In the event that any shares of Northern Common Stock which were Dissenting Shares immediately prior to release the Effective Time are held by a holder that prior to the Escrow Expiration Date shall have failed to perfect or shall have effectively withdrawn or lost its right to appraisal and deliver payment under Sections 711.175--.185 of Title 53 ("ADDITIONAL NONDISSENTING SHARES"), then Cowlitz Bank shall thereupon cause additional funds to be placed in the Escrow equal to the product of the Per Share Amount of Escrowed Funds and the number of such Additional Nondissenting Shares. Such additional funds shall become part of the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or Funds.
(ii) deposit A committee (the Escrowed Funds with "COMMITTEE") shall be appointed by Northern and Cowlitz Bank to deliver instructions to the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the disbursement of the Escrowed Funds. Northern hereby appoints Xxxx Xxxxxx and Xxxx Xxxxxxxxxx to serve on the Committee as representatives of the holders of Northern Common Stock immediately prior to the Effective Time (the "NORTHERN MEMBERS") and Cowlitz Bank hereby appoints Xxxxx Xxxxxxx and Xxxxx Xxxxx to serve on the Committee as representatives of Cowlitz Bank and the Surviving Bank (the "COWLITZ BANK MEMBERS"). Cowlitz Bank shall have the right, from time to time and in its sole discretion, to appoint a substitute Cowlitz Bank Member upon written notice to the Escrow Agent and the Northern Members. If a Northern Member should prior to the Effective Time become unable or unwilling to serve on the Committee, such Northern Member shall give Northern and Cowlitz Bank prompt prior written notice thereof, and Northern shall have the right, in its sole discretion, to appoint a substitute Northern Member no later than the earlier of (A) the Effective Time or (B) five (5) business days after delivery of such notice. If a Northern Member should after the Effective Time become unable or unwilling to continue to serve on the Committee after the Effective Time, such Northern Member shall give Cowlitz Bank prior written notice thereof, and within five (5) business days after delivery of such notice, the Property remaining Northern Member shall have the right, in his or her sole discretion, to appoint a substitute Northern Member; PROVIDED, that such Substitute Northern Member (x) must have been a stockholder of Northern immediately prior to the subject matter Effective Time, (y)
(1) must have been a director or officer of this Agreement Northern at the Effective Time or (2) in the remaining Northern Member's reasonable judgment, must be a sophisticated financial investor and (z) is not a director, officer or employee of Cowlitz or Cowlitz Bank. The parties agree that no Northern Member or Cowlitz Bank Member shall have any liability to any party hereto or any holder of Northern Common Stock with respect to acts or omissions in his or her capacity as a member of the Committee, unless requested it is established in a final judicial determination by clear and convincing evidence that any decision or action was undertaken with deliberate intent to do so by Purchaser injure the holders of Northern Common Stock or Seller and is indemnified to its satisfaction against with reckless disregard for the cost and expense best interest of such defense. Escrow Agent shall not be required to institute legal proceedings of holders, and in any kind and shall have no responsibility for event, the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent liability shall be fully protected limited to actual, proximate, quantifiable damages.
(iii) The purpose of the Escrow shall be to ensure that the Surviving Bank and its successors are reimbursed for losses relating to the Identified Loans as well as the Level 6 Loans as of the Effective Time (collectively "COVERED LOANS"). Schedule 2.a to the Escrow Agreement shall be completed prior to the Effective Time by listing thereon each Identified Loan listed on Schedule 2.6(d) (subject to revision pursuant to Section 2.6(f)) and the Threshold Amount for each Identified Loan. Schedule 2.b to the Escrow Agreement shall be completed prior to the Effective Time by listing thereon each Level 6 Loan listed on Schedule 2.6(e) (subject to revision pursuant to Section 2.6(e)). Except as provided in acting the immediately succeeding sentence, the "THRESHOLD AMOUNT" shall mean for each Identified Loan the lesser of (A) the difference between (i) the reserve for such Identified Loan on the books of Northern immediately prior to the Effective Time (excluding any portion of the general reserve for all outstanding loans) and (ii) the Loan Adjustment Factor and (B) (i) 5% of the outstanding principal amount if the Identified Loan is classified as Special Mention pursuant to the procedure set forth in accordance with any written instructions given Section 2.6(d), less the Loan Adjustment Factor, (ii) 15% of the principal amount if the Identified Loan is classified as Substandard, less the Loan Adjustment Factor, (iii) 50% of the principal amount if the Identified Loan is classified as Doubtful, less the Loan Adjustment Factor, and (iv) 100% of the principal amount if the Identified Loan is classified as Loss, less the Loan Adjustment Factor. Notwithstanding the preceding sentence, if the Base Value exceeds $2,348,199 and the amount determined pursuant to it hereunder clause (A) of the preceding sentence for an Identified Loan exceeds the amount determined pursuant to clause (B) for such Identified Loan, then the Threshold Amount for such Identified Loan shall equal the amount determined pursuant to clause (A) above. "LOAN ADJUSTMENT FACTOR" will be $0 if Northern has on its books immediately prior to the Effective Time a general reserve equal to at least 1 1/2% of the aggregate principal amounts of all outstanding loans (including without limitation all Identified Loans). If such general reserve is less than 1 1/2%, then the Loan Adjustment Factor will equal the different between (i) 1 1/2% and believed by it (ii) the percentage of the remaining general reserve that would be applicable to the Identified Loans after moving sufficient general reserves to the non-Identified Loans so that all non-Identified Loans would have been signed by the proper partiesa general reserve of 1 1/2%.
Appears in 1 contract
Escrow. (a) Subject to the provisions of Section 4.1 above, Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with including the interest. In all other instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its their tax identification number, for purposes of reporting the interest earnings, is 00-00000000000000 for Xxxxxx Realty, and 00-0000000 for Folsom Realty.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"“Escrowed Funds”), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdictionthe Denver District Court. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Escrow. 19.1 Escrow Agent shall hold the Downpayment and all interest accrued thereon, if any (collectively, the "Fund") in escrow and shall dispose of the Fund only in accordance with the provisions of this Section 19.
19.2 Escrow Agent shall deliver the Fund to Seller or Purchaser, as the case may be, as follows:
(a) to Seller, upon completion of the Closing; or
(b) to Seller, after receipt of Seller's demand in which Seller certifies that Purchaser has defaulted under this Agreement, but Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by shall not honor Seller's demand until more than ten (10) days after Escrow Agent for the holding has given a copy of escrow funds until the earlier Seller's demand to Purchaser in accordance with Section 19.3(a), nor thereafter if Escrow Agent receives a Notice of Objection from Purchaser within such ten (10) day period; or
(c) to Purchaser, after receipt of Purchaser's demand in which Purchaser certifies either that (i) the ClosingSeller has defaulted under this Agreement, or (ii) the termination of this Agreement has been otherwise terminated or canceled, and Purchaser is thereby entitled to receive the Fund; but Escrow Agent shall not honor Purchaser's demand until more than ten (10) days after Escrow Agent has given a copy of Purchaser's demand to Seller in accordance with any right hereunderSection 19.3(a), nor thereafter if Escrow Agent receives a Notice of Objection from Seller within such ten (10) day period. In Notwithstanding the event foregoing, if Purchaser has not terminated terminates this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Inspection Period, Escrow Agent shall, immediately upon receipt of Purchaser's demand, deliver the Xxxxxxx Money Deposit Fund to Purchaser. Upon delivery of the Fund, Escrow Agent shall be 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 a bank wire transfer of immediately available funds to an account designated by such party.
(a) Upon receipt of a written demand from Seller or Purchaser under Section 19.2(b) or (c), except in the event of a demand which states that Purchaser has terminated the Agreement prior to the expiration of the Inspection Period, Escrow Agent shall send a copy of such demand to the other party. Within ten (10) days after the date of receiving same, but not thereafter, the other party may object to delivery of the Fund to the party making such demand by giving a notice of objection (a "Notice of Objection") to Escrow Agent. After receiving a Notice of Objection, Escrow Agent shall send a copy of such Notice of Objection to the party who made the demand; and thereafter, in its sole and absolute discretion, Escrow Agent may elect either (i) to continue to hold the Fund until Escrow Agent receives a written agreement of Purchaser and Seller directing the disbursement of the Fund, in which event Escrow Agent shall disburse the Fund in accordance with such agreement; and/or (ii) to take any and all interest accrued thereon will be returned by the actions as Escrow Agent deems necessary or desirable, in 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 Seller and Purchaser, to deposit the Fund with the clerk of the court in which such litigation is pending.
(b) 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 Section 19.2(b) or (c), or Notice of Objection under Section 19.3(a)), notwithstanding anything to the contrary herein, Escrow Agent may hold and apply the Fund pursuant to Section 19.3(a)(i), (ii) or (iii) and may decline to take any other action whatsoever. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released Fund is deposited in a court by Escrow Agent pursuant to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instancesSection 19.3(a)(ii) or (iii), Escrow Agent shall not release be entitled to rely upon the Xxxxxxx Money Deposit decision of such court. In the event of any dispute whatsoever among the parties with respect to either party until disposition of the Fund, Purchaser and Seller shall pay the reasonable attorney's fees and costs incurred by Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit (which said parties shall share equally, but for which said parties shall be jointly and has given the other party five (5severally liable) Business Days to disputefor any litigation in which Escrow Agent is named as, or consent tobecomes, a party.
19.4 Notwithstanding anything to the release contrary in this Agreement, within one (1) business day after the date of this Agreement, Escrow Agent shall place the Downpayment in an Approved Investment. The interest, if any, which accrues on such Approved Investment shall be deemed part of the Xxxxxxx Money Deposit, provided that, if Fund; and Escrow Agent shall dispose of such interest as and with the Closing occurs, Fund pursuant to this Agreement. Escrow Agent may not commingle the Xxxxxxx Money Deposit and interest thereon will be applied Fund with any other funds held by Escrow Agent. Escrow Agent may convert the Fund from the Approved Investment into a non-interest-bearing demand account at an Approved Institution as set forth above on follows:
(a) at any time within three (3) days prior to the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.; or
(b) if the Closing Date is accelerated or extended, at any time within three (3) days prior to the accelerated or extended Closing Date; provided, however, that Seller and Purchaser shall give Escrow Agent timely notice of any such acceleration or extension and that Escrow Agent may hold the Fund in a non-interest-bearing deposit account if Seller and Purchaser do not give Escrow Agent timely notice of any such adjournment.
19.5 As used herein, the term "Approved Investment" means (a) any interest-bearing demand account or money market fund in [Citibank, N.A.] located in the City of New York or in any other institution otherwise approved by both Seller and Purchaser (collectively, an "Approved Institution"), or (b) any other investment approved by both Seller and Purchaser. The rate of interest or yield need not be the maximum available and deposits, withdrawals, purchases, reinvestment of any matured investment and sales shall be made in the sole discretion of Escrow Agent, which shall have no liability whatsoever therefor. Discounts earned shall be deemed interest for the purpose hereof.
19.6 Escrow Agent shall not be liable to any party for any act have no duties or omissionresponsibilities except those set forth herein, except for bad faith, gross negligence or willful misconduct, and which the parties hereto agree to indemnify Escrow Agent are ministerial in nature. Seller and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties Purchaser acknowledge that Escrow Agent is acting serving without compensation, solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between an accommodation to the parties with respect to the Xxxxxxx Money Deposit hereto, and the interest earned thereon (the "ESCROWED FUNDS")except for Escrow Agent's own willful default, misconduct or gross negligence, Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk have no liability of any court kind whatsoever arising out of competent jurisdictionor in connection with its activity as Escrow Agent. Upon such deposit, Seller and Purchaser jointly and severally agree to and do hereby indemnify and hold harmless Escrow Agent will be released from all duties loss, cost, claim, damage, liability, and responsibilities hereunderexpense (including reasonable attorney's fees and disbursements whether paid to retained attorneys or representing the fair value of legal services rendered to itself) which may be incurred by reason of its acting as Escrow Agent provided the same is not the result of Escrow Agent's willful default, misconduct or gross negligence. Escrow Agent shall have may charge against the right Fund any amounts owed to consult with separate counsel it under the foregoing indemnity or may withhold the delivery of its own choosing (if it deems such consultation advisable) and shall not be liable the Fund as security for any action takenunliquidated claim, suffered or omitted both.
19.7 Any Notice of Objection, demand or other notice or communication which may or must be sent, given or made under this Agreement to or by it Escrow Agent shall be sent in accordance with the advice provisions of such counselSection 22.
(c) 19.8 Simultaneously with their execution and delivery of this Agreement, Purchaser and Seller shall furnish Escrow Agent shall not be required to defend any legal proceeding which with their true Federal Taxpayer Identification Numbers so that Escrow Agent may be instituted against it file appropriate income tax information returns with respect to any interest in the Escrowed FundsFund or other income from the Approved Investment. The party ultimately entitled to any accrued interest in the Fund shall be the party responsible for the payment of any tax due thereon.
19.9 Seller and Purchaser waive any claim of conflict of interest by reason of Escrow Agent's actions in that capacity under this Agreement. Purchaser hereby acknowledges that Escrow Agent is the attorney for the Seller, and agrees that Escrow Agent may represent Seller in connection with any and all matters, including without limitation, the Property or the subject matter transaction contemplated by this Agreement and any litigation, including any action arising out of this Agreement; provided that in no event shall Purchaser be responsible for payment of any fees incidental to any such representation.
19.10 Any amendment of this Agreement unless requested to do so by Purchaser which could alter or Seller and is indemnified to its satisfaction otherwise affect Escrow Agent's obligations hereunder will not be effective against the cost and expense of such defense. or binding upon Escrow Agent without Escrow Agent's prior consent, which consent may be withheld in Escrow Agent's sole and absolute discretion.
19.11 The provisions of this Section 19 shall not be required to institute legal proceedings survive the termination of any kind this Agreement and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesClosing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Philips International Realty Corp)
Escrow. (a) On the Closing Date, the Purchaser shall deposit the Aggregate Escrow Amount with the Escrow Agent will hold to be held in the Xxxxxxx Money Deposit following sub-accounts for release in escrow in an interest-bearing account accordance with the terms of this Agreement and the type generally used by Escrow Agent for the holding of escrow funds until the earlier of Agreement: (i) the Closing, or Working Capital Escrow Amount will be held in a sub-account exclusively to pay any adjustment of the Purchase Price as provided in Section 3.10; and (ii) the termination Indemnification Escrow Amount will be held in a sub-account to pay any type of this Agreement claim for indemnification pursuant to Article X. The Aggregate Escrow Amount shall be held in accordance with any right hereunderan escrow account (the “Escrow Account”) pursuant to the Escrow Agreement. In Any interest, income or profits on the event Purchaser has not terminated this Agreement by Working Capital Escrow Amount or the end Indemnification Escrow Amount shall remain in the Escrow Account and become part of the Evaluation PeriodWorking Capital Escrow Amount or the Indemnification Escrow Amount, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000applicable.
(b) The Escrow Agreement shall provide, in addition to the terms and conditions set forth in Section 3.10, that:
(i) on the date that is eighteen (18) months after the Closing Date (the “Escrow Release Date”), the Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect pay to the Xxxxxxx Money Deposit Paying Agent, on behalf of the Closing Common Stockholders, the remainder of the Indemnification Escrow Amount minus (A) the aggregate amount of claims made and finally determined pursuant to the interest earned thereon terms of the Escrow Agreement but not paid as of the Escrow Release Date and minus (B) the "ESCROWED FUNDS"), aggregate amount of unresolved disputed claims made pursuant to the Escrow Agent shall not be bound to release and deliver Agreement as of the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or Escrow Release Date;
(ii) deposit the Escrowed Funds with remainder of the clerk of any court of competent jurisdiction. Upon such deposit, Indemnification Escrow Agent will Amount shall be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it paid in accordance with the advice of such counselEscrow Agreement.
(c) In the event of a conflict between the Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed FundsAgreement and this Agreement, the Property or the subject matter terms of this Agreement unless requested to do so by Purchaser or Seller shall govern.
(d) The fees, costs and is indemnified to its satisfaction against expenses of the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed paid by the proper partiesPurchaser.
Appears in 1 contract
Samples: Merger Agreement (OMNICELL, Inc)
Escrow. Pursuant to an escrow agreement in substantially the form attached hereto as Exhibit A (athe “Escrow Agreement”) Escrow Agent to be entered into on or before the Closing Date among Parent, Acquisition Sub, Seller and the escrow agent named therein, Seller shall deposit in the escrow an amount in cash equal to one-half of the Accounts Receivable, from the Cash Assets not included in the Purchased Current Assets (the “Cash Escrowed Amount”), and Acquisition Sub will hold withhold from the Xxxxxxx Money Deposit Initial Consideration and deposit in the escrow Ten Percent (10%) of the number of shares of Parent Common Stock to be delivered at the Closing (the “Stock Escrowed Amount”). The Cash Escrowed Amount will be held in escrow in an interest-bearing account of until one hundred twenty (120) days following the type generally used by Escrow Agent for Closing Date, at which time there shall be distributed to Acquisition Sub from the holding of escrow funds until Cash Escrowed Amount the earlier sum of (i) the Closingamount of any Accounts Receivable included in the Purchased Current Assets which have not then been collected by Parent or Acquisition Sub in full, or and (ii) the termination Unassigned Maintenance Revenues of this Agreement the Non-consenting Customers whom have not assigned their maintenance agreement with Seller to Acquisition Sub by the date one hundred twenty (120) days following the Closing Date. To the extent that the Cash Escrowed Amount is insufficient to make required distributions to Acquisition Sub, any such Cash Escrowed Amount shortfall shall be funded first by the Stock Escrowed Amount and then second by a reduction in any payments due to be made by Acquisition Sub to Seller for the Earnout Purchase Price. Any remaining amount of such Cash Escrowed Amount shall be promptly returned to Seller. The Stock Escrowed Amount will be held in escrow as Acquisition Sub’s security for Parent’s Off-Set Claims. Subject to the terms of the Escrow Agreement, the Stock Escrowed Amount will be held in escrow until one (1) year from the Closing Date, at which time the Stock Escrowed Amount will be disbursed in accordance with any right hereunderthe Escrow Agreement. In For purposes of valuing the event Purchaser has not terminated this Agreement by Parent Common Stock in the end Stock Escrowed Amount, each share of Parent Common Stock shall equal the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned average closing price per share of Parent Common Stock on the Xxxxxxx Money Deposit shall be paid to NASDAQ SmallCap Market for the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, trading days ending on (and including) the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on trading day immediately preceding the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. Subject to adjustment under Section 1.9, ninety percent (a90%) Escrow Agent will hold of the Xxxxxxx Money Deposit BioTime Shares and LifeMap Shares issuable to the Xennex Stockholders shall be delivered to the Xennex Stockholders as partial payment of the Merger Consideration, and ten percent (10%) of the BioTime Shares and LifeMap Shares issuable in the Merger shall be issued and held in escrow in an interest-bearing account of (the type generally used Escrow Shares) by Xxxxx Fargo Bank, National Association (Escrow Agent for the holding of escrow funds Agent) until the earlier later of (i) the Closing, or expiration of 180 days following the Closing Date (the Escrow Termination Date); and (ii) the termination date on which all claims under Section 1.9 in respect of this Agreement in accordance with any right hereunderwhich a claim notice has been issued before the Escrow Termination Date (the Escrow Claim) has been resolved. In the event Purchaser has An Escrow Claim shall not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable deemed to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit have been resolved until (a) Xennex and all interest accrued thereon will be returned by LifeMap have notified the Escrow Agent to Purchaser. In in writing that the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent Claim has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to disputeresolved, or consent to, (b) the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on Escrow Claim has been resolved by a final court judgment or arbitration award. On or before the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconductLifeMap and Xennex, and Xxxxxxx Xxxxxx as Representative of the parties Xennex Stockholders, shall enter into an escrow agreement with Escrow Agent, in substantially the form attached as Exhibit D (the Escrow Agreement). LifeMap and Xennex agree to indemnify that the Escrow Agent Agreement shall provide for the delivery of Escrow Shares out of escrow in the manner provided in this Section and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewithSection 1.9. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice Agreement shall contain a provision under which LifeMap and Xennex agree that, where a resolution of a any dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed Parties results in a writing signed by all parties hereto an award or (ii) deposit the Escrowed Funds with the clerk of judgment from arbitration or any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it other legal proceeding in accordance with the advice provisions of such counsel.
(c) Section 1.9, the Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it release the Escrow Shares pursuant to, and following the receipt of, distribution instructions that are consistent with respect the award or judgment, delivered to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not by the prevailing Party or Parties. The Escrow Shares to be required placed in escrow pursuant to institute legal proceedings of any kind this Section 1.7 and shall have no responsibility the Escrow Agreement will initially be withheld (and subsequently dispersed to the extent provided or allowed under the terms hereof and the Escrow Agreement) from the payment to be made to the Xennex Stockholders pro rata in accordance with their respective individual interests in the Merger Consideration. All costs and expenses incurred for the genuineness Escrow Agent or validity of any document or other item deposited with it or the collectibility of any check delivered otherwise in connection with this Agreement. the Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed borne by it to have been signed by the proper partiesLifeMap.
Appears in 1 contract
Samples: Merger Agreement (Biotime Inc)
Escrow. (a) Upon the Closing, Parent shall withhold the Escrow Cash Amount and the Escrow Shares (the Escrow Cash Amount and the Escrow Shares being collectively referred to as the “Indemnity Escrow Amount”) and deliver such cash and shares to JPMorgan Chase Bank, NA, a national banking association, as escrow agent (the “Escrow Agent”), to be held by the Escrow Agent as collateral to secure the rights of the Indemnified Parties under Section 9. The Indemnity Escrow Amount shall be held pursuant to the provisions of an escrow agreement substantially in the form of EXHIBIT H hereto (the “Escrow Agreement”). The Escrow Shares will be represented by a certificate or certificates issued in the name of the Escrow Agent, and the Indemnity Escrow Amount will be held by the Escrow Agent until the date that is 18 months after the Closing Date (the “Indemnity Escrow Period”); provided, however, that in the event any Indemnified Party has made a claim under Section 9 prior to the end of the Indemnity Escrow Period, then, in accordance with and subject to the terms and conditions of the Escrow Agreement, the Indemnity Escrow Period shall continue (and the Escrow Agent will continue to hold the Xxxxxxx Money Deposit an amount of cash and shares in escrow in an interest-bearing account equal to any claimed amounts) until such claim is fully and finally resolved. By virtue of the type generally used execution of this Agreement by Escrow Agent for the holding a Shareholder, without any further act of escrow funds until the earlier of any Shareholder, such Shareholder shall be deemed to have consented to and approved (i) the Closinguse of the Indemnity Escrow Amount as collateral to secure the rights of the Indemnified Parties under Section 9 in the manner set forth herein and in the Escrow Agreement, or and (ii) the termination appointment of the Shareholders’ Representative as the representative under the Escrow Agreement of the Shareholders under this Agreement in accordance with any right hereunder. In and as the event Purchaser has not terminated this Agreement by the end attorney-in-fact and agent for and on behalf of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000such Shareholder.
(b) Upon the Closing, Parent shall withhold the Special Taxes Escrow Amount and deliver such cash to the Escrow Agent, to be held by the Escrow Agent as collateral to secure the rights of the Indemnified Parties under Section 9.7. The Special Taxes Escrow Amount shall not be liable held pursuant to any party for any act or omission, except for bad faith, gross negligence or willful misconductthe provisions of the Escrow Agreement, and will be held by the parties agree to indemnify Escrow Agent until the date that is three (3) years after the Closing Date (the “Special Taxes Escrow Period”); provided, however, that in the event any Indemnified Party has made a claim under Section 9.7 prior to the end of the Special Taxes Escrow Period, then, in accordance with and hold subject to the terms and conditions of the Escrow Agreement, the Special Taxes Escrow Period shall continue (and the Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) will continue to hold an amount of cash and shares in escrow equal to any claimed amounts) until such claim is fully and finally resolved. By virtue of the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter execution of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings a Shareholder, without any further act of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent Shareholder, such Shareholder shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it deemed to have been signed by consented to and approved the proper partiesuse of the Special Taxes Escrow Amount as collateral to secure the rights of the Indemnified Parties under Section 9.7 in the manner set forth herein and in the Escrow Agreement.
Appears in 1 contract
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, except as otherwise expressly provided in this Agreement, but if not refunded in accordance with this Agreement shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit. In the event this Agreement is terminated due to a Purchaser default, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller in accordance with the interestSection 13.2. In all other instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its the tax identification number, number for purposes of reporting the interest earnings, earnings of Centennial Acquisition Company is 00-0000000. Seller represents that its , and the tax identification number, number for purposes of reporting the interest earnings, earnings of Waramaug Acquisition Corp. is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"“Escrowed Funds”), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty Corp)
Escrow. (a1) Escrow Agent will hold On the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of Issue Date, (i) the ClosingCompany shall deposit (or cause to be deposited) into the Escrow Account the aggregate amount paid for the Offered Securities and the related guarantees, or net of the initial purchasers’ discount and commissions, pursuant to Section 3 of the Purchase Agreement (the “2017 Notes Proceeds”) and (ii) Pentair will deposit into the termination Escrow Account an amount equal to: (x) the Special Mandatory Redemption Price (as defined in Section 1.6(3)) that would be payable pursuant to Section 1.6(3) if the Special Mandatory Redemption Date were February 8, 2013, less (y) the 2017 Notes Proceeds (the “Pentair Deposit”).
(2) Upon the satisfaction of this Agreement all of the following conditions (collectively, the “Escrow Release Conditions”), and only upon the satisfaction of the Escrow Release Conditions, the Company, Parent and Pentair shall execute a Notice of Distribution and Merger, in the form set forth in Exhibit A to the Escrow Agreement, or such other notice as shall be mutually agreed with the Escrow Agent, to cause (x) the 2017 Notes Proceeds (together with any interest thereon or proceeds or investment income in respect thereof) to be released to the Company and (y) the Pentair Deposit (together with any interest thereon or proceeds or investment income in respect thereof) to be released to Pentair:
(a) the Distribution has been completed in all material respects in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit Separation and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.Distribution Agreement;
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and Merger has been completed in all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it material respects in accordance with the advice of such counsel.Merger Agreement;
(c) the Tyco Administrative Agent shall have provided a written release of the Company’s and Parent’s guarantees of the Tyco Credit Facilities; and
(d) no Event of Default has occurred and is continuing. Satisfaction of certain of the Escrow Release Conditions may occur simultaneous with or immediately after the release of funds from the Escrow Account, but the funds will be released upon the certification by the Issuer, the Guarantor and Pentair to the Escrow Agent shall not that such Escrow Release Conditions will be required satisfied simultaneous with or immediately after the release of funds. The date on which the Escrow Release Conditions are satisfied or deemed satisfied is referred to defend any legal proceeding which may be instituted against it with respect to as the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. “Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesRelease Date”.
Appears in 1 contract
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the The Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but except as otherwise set forth herein, and shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all other instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit as follows: (i) if requested by Seller, then upon Seller’s written demand therefore stating that Purchaser defaulted in the performance of Purchaser’s obligations to close under this Agreement and has given the other party facts and circumstances forming the basis of such default and (ii) if requested by Purchaser, then upon Purchaser’s written demand therefore, stating that Seller defaulted in the performance of Seller’s obligations to close under this Agreement and the facts and circumstances forming the basis of such default; provided, that, in neither case shall Escrow Agent release the Xxxxxxx Money Deposit until five (5) Business Days following Escrow Agent’s delivery of such written demand to disputethe non-requesting party; provided, or consent tofurther, that if during such five (5) Business Days period, the non-requesting party shall have delivered to Escrow Agent a written dispute to the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, Escrow Agent shall not release the Xxxxxxx Money Deposit unless it receives further written direction signed by Seller and interest thereon will be applied Purchaser. If no written dispute is so delivered, Escrow Agent shall disburse the Xxxxxxx Money Deposit as set forth above on the Closing Datedirected. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller Harsimus represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000, and Columbia represents that its tax identification number, for purposes of reporting interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.the
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty Corp)
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used 6.14.1 All Losses payable by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of Eton to any Dx. Xxxxx’x Indemnitees under this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall may be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent from the Escrow Amount. Subject to Purchaserthe limitations set forth in Section 8.4, any Losses that are in excess of the Escrow Amount shall be paid by Eton; provided that, Dx. Xxxxx’x may, in its sole discretion, elect to offset such Losses against any Milestone Payments due and owing but not yet paid. Promptly following the date that is [*] (the “Escrow Release Date”), Dx. Xxxxx’x and Eton shall execute and deliver a joint written instruction to the Escrow Agent directing the Escrow Agent to release to Eton any remaining portion of the Escrow Amount, less any pending amounts that are subject to pending Claims made by any Dx. Xxxxx’x Indemnitees under this Agreement prior to 11:59 p.m. Eastern Time on the Escrow Release Date. If any Claim made by any Dx. Xxxxx’x Indemnitees under this Agreement is still pending as of the Escrow Release Date, the Escrow Agent, pursuant to the terms of the Escrow Agreement, will retain a portion of the Indemnity Escrow Amount in an amount equal to such Losses identified in any unresolved notice delivered pursuant to the Escrow Agreement until such Claim has been satisfied or otherwise resolved, at which point Dx. Xxxxx’x and Eton shall execute and deliver a joint written instruction to the Escrow Agent directing the Escrow Agent to release to Eton any remaining balance of the Escrow Amount not used to satisfy such indemnification rights of Dx. Xxxxx’x Indemnitees under this Agreement.
6.14.2 The parties shall split equally any costs and expenses incurred in connection with the Escrow Agreement, subject to the terms and conditions thereof. If one party pays any portion of the other party’s costs and expense, the other party shall reimburse the paying party on demand.
6.14.3 In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released that (i) Dx. Xxxxx’x provides written notice (a “Request Notice”) to Seller, and Purchaser shall receive Eton requesting Eton to issue (along with Dx. Xxxxx’x) a credit against the Purchase Price in the amount joint written instruction to release any portion of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties Amount with respect to the Xxxxxxx Money Deposit any uncontested amounts that Dx. Xxxxx’x asserts are payable to Dx. Xxxxx’x, and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit Eton does not, within twenty (20) days of receipt Request Notice, either (A) join Dx. Xxxxx’x in issuing such instructions or (B) object to Dx. Xxxxx’x Request Notice in writing by providing notice to Dx. Xxxxx’x hereunder, then Dx. Xxxxx’x shall be permitted to issue unilateral written instruction to the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. to disperse the Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it Amounts in accordance with the advice of such counselDx. Xxxxx’x instructions.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Samples: Asset Purchase Agreement (Eton Pharmaceuticals, Inc.)
Escrow. On the Effective Date, the Buyer shall deposit Two Million Five Hundred Thousand Dollars (a$2,500,000.00) Escrow Agent will hold (the Xxxxxxx Money Deposit in escrow "Escrow") in an interest-interest bearing escrow account (with interest accruing thereon to the credit of the type generally used party hereto that ultimately will receive the Escrow in accordance with the terms hereof) to be held by American Trust & Savings Bank, Dubuque, Iowa ("Escrow Agent Holder") in accordance with the provisions of this Section 3.2, and as set forth in the Escrow Agreement attached hereto as Exhibit D. The Escrow, and the interest earned thereon, shall be applied to and credited against the Purchase Price on the Closing Date. Buyer shall complete and file with the Iowa Racing and Gaming Commission ("IRGC") by February 1, 1999, Buyer's application for a license to conduct gambling games on an excursion gambling boat at Dubuque, Iowa. For purposes of this Agreement, Buyer's application for a license to conduct gambling games shall be considered complete when the holding IRGC deems the application to be complete enough to commence background investigations of escrow funds until the earlier applicant; provided, however, that should the IRGC request additional information in connection with Buyer's gambling license application then that previously required (including, without limitation, all requisite "Class A" background applications for Mr. Xxxxx Xxxxxxx, Xx. Xxxx Xxxxxx, Xx. Xxxxx Xxxxxx and Mr. Xxxxxx Xxxxxxxxx, a "D Business Entity Application", an "IRGC Excursion Gambling Boat License Application" and fully executed copies of this Agreement and the Real Property Purchase Agreement), on or prior to the date of this Agreement, Buyer's obligation to file its gambling license application by February 1, 1999 shall be extended by a period of time reasonably acceptable to Buyer and Seller to accommodate such requests for additional information (the "Extended Filing Date"). Seller shall provide and furnish the information and/or materials set forth on Schedule 3.2 to assist Buyer in completing the gaming license application. In the event Buyer has not filed its gambling license application with the IRGC by February 1, 1999 or by the Extended Filing Date, if applicable, this Agreement shall be terminated and the Escrow Holder shall deliver to Seller the Escrow, and all interest accrued thereon, as liquidated damages and not as a penalty. Upon the termination of this Agreement by Seller in accordance with the provisions of Section 16 due to (i) the Closingfailure by Buyer to satisfy on or prior to the Closing Date any of the conditions set forth in Sections 9.1, 9.2, 9.3, 9.4 and 9.5, (ii) Buyer's failure to obtain the necessary approvals or consents of the IRGC required for the consummation of the transactions contemplated by this Agreement, (including but without limitation, approval of Buyer's license to conduct gambling games on an excursion gambling boat at Dubuque, Iowa) by July 15, 1999, or (iiiii) Buyer's inability to obtain financing to close this transaction upon the terms and conditions set forth in this Agreeement by July 15, 1999, the Escrow Holder shall deliver the Escrow, and all interest accrued thereon, to Seller. For purposes of the immediately preceding sentence, Buyer's failure to obtain the necessary IRGC approvals or consents shall not be deemed to have occurred until such time that Buyer has met with appropriate officials or representatives of the IRGC on at least two (2) separate occasions (if necessary) at scheduled IRGC meetings (not including any postponements, continuations or cancellations thereof) to discuss the approval and consent by the IRGC of Buyer's license application and Buyer's license application has been denied by the IRGC after such second meeting. Notwithstanding the foregoing, Buyer shall be deemed to have failed to obtain the necessary approvals and consents from the IRGC if the Buyer has not obtained such approvals and consents by July 15, 1999. In the event that this Agreement is terminated pursuant to Section 16.1 (g) hereof due to a material adverse change in the financial markets which materially prevents Buyer from obtaining reasonable financing, the Escrow Holder shall deliver the Escrow, and all accrued interest thereon, to Seller. Upon the termination of this Agreement in accordance with the provisions of Section 16 hereof by either Buyer or Seller for any right hereunder. In the event Purchaser has not terminated reason other than those specifically described in this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to disputeSection 3.2, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on in other provisions of this Agreement, the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent Holder shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds Escrow to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselBuyer.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Peninsula Gaming Corp)
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) $75,000,000 (the “Escrow Amount”, and together with all accrued interest thereon and any proceeds thereof less the fees and expenses of the Escrow and Payments Agent in its capacity as escrow agent, the “Escrow Fund”) shall be deposited by Parent at the Closing, or by wire transfer of immediately available funds, into escrow pursuant to the terms of the applicable Escrow and Payments Agreement.
(ii) The Escrow Fund shall be held for the termination period commencing on the Closing Date and ending on February 28, 2022 (the “Escrow Period”) (subject to extension under the applicable Escrow and Payments Agreement for pending claims) and used exclusively for the purpose of satisfying indemnification claims pursuant to ARTICLE XII, the obligations set forth in Section 3.07, and the amount of any Company Transaction Expenses that are not reflected in the Estimated Statement or otherwise paid at the Closing, and shall be held and released pursuant to the terms of the applicable Escrow and Payments Agreement, Section 3.07 and ARTICLE XII.
(iii) Within three (3) Business Days after the date on which the payment contemplated by Section 3.07(f) is required to be made, Parent and the Stockholders’ Representative shall issue joint written instructions to the Escrow and Payments Agent to distribute to the Key Stockholders in accordance with the terms of this Agreement an amount equal to the excess of the then remaining balance of the Escrow Fund over $50,000,000.
(iv) Within three (3) Business Days after the first anniversary of the Closing Date, Parent and the Stockholders’ Representative shall issue joint written instructions to the Escrow and Payments Agent to distribute to the Key Stockholders in accordance with any right hereunder. In the event Purchaser has not terminated terms of this Agreement by an amount equal to the excess of the then remaining balance of the Escrow Fund over $25,000,000 plus the amount of Pending Indemnity Escrow Claims.
(v) Within three (3) Business Days after the completion of the Escrow Period, Parent and the Stockholders’ Representative shall issue joint written instructions to the Escrow and Payments Agent to distribute to the Key Stockholders in accordance with the terms of this Agreement an amount equal to (A) the then remaining balance of the Escrow Fund less (B) the amount of all Losses for which Parent has delivered a Claim Notice for indemnification to be satisfied from the Escrow Fund in accordance with Section 12.02(b) prior to the end of the Evaluation Escrow Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid and which claims have not been finally determined pursuant to the party entitled terms of this Agreement and the applicable Escrow and Payments Agreement as of such date (“Pending Indemnity Escrow Claims”). Promptly following the final determination of each Pending Indemnity Escrow Claim, until there is no remaining balance of the Escrow Fund, Parent and the Stockholders’ Representative shall issue joint written instructions to the Xxxxxxx Money Deposit. In Escrow and Payments Agent to distribute to the event Key Stockholders in accordance with the terms of this Agreement is terminated prior an amount equal to the expiration excess (if any) of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in (x) the amount of Losses for which Parent had delivered the Xxxxxxx Money Deposit, applicable Claim Notice for indemnification to be satisfied from the Escrow Fund in accordance with ARTICLE XII and (y) the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit amount (if any) finally awarded to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties Parent with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselunderlying claim.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. Escrow Agent shall hold the LOI Deposit and the Deposit and all interest accrued thereon, if any (collectively, the "FUND") in escrow and shall dispose of the Fund only in accordance with the following provisions:
(a) Escrow Agent will hold shall deliver the Xxxxxxx Money Deposit in escrow in an interest-bearing account of (and the type generally used by Escrow Agent for LOI Deposit) to Seller or Purchaser, as the holding of escrow funds until the earlier of case may be, as follows:
(i) to Seller, upon completion of the ClosingClosing and/or
(ii) to Seller, after receipt of Seller's demand in which Seller certifies either that (A) Purchaser has defaulted under this Agreement beyond any applicable notice or cure periods, or (iiB) the termination of this Agreement has been terminated or cancelled, and Seller is thereby entitled to receive the Deposit; but Escrow Agent shall not honor Seller's demand until more than ten (10) Business Days after Escrow Agent has given a copy of Seller's demand to Purchaser in accordance with any right hereunder. In the event Section 18(b)(i), nor thereafter if Escrow Agent receives a Notice of Objection from Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable within such ten (10) Business Day period; or
(iii) to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned immediately after receipt of Purchaser's demand on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated or prior to the expiration of the Evaluation Period, Due Diligence Period in which Purchaser certifies that it has terminated the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent Agreement under Section 4(d); or
(iv) to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Sellerafter receipt of Purchaser's demand in which Purchaser certifies either that (A) Seller has defaulted under this Agreement beyond any applicable notice or cure periods, or (B) this Agreement has been terminated or cancelled, and Purchaser is thereby entitled to receive the Deposit; but Escrow Agent shall receive not honor Purchaser's demand until more than ten (10) Business Days after Escrow Agent has given a credit against copy of Purchaser's demand to Seller in accordance with Section 18(b)(i), nor thereafter if Escrow Agent receives a Notice of Objection from Seller within such ten (10) Business Day period; or
(v) to Purchaser (with respect to the Purchase Price in LOI Deposit only), on the amount second Business Day after the delivery of Purchaser's Termination Notice to Seller. Upon delivery of the Xxxxxxx Money Deposit, Deposit in accordance with the interest. In all instancesthis Agreement, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit be relieved of all liability hereunder and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and Deposit. Escrow Agent shall deliver the interest earned thereon Deposit, at the election of the party entitled to receive the same, by (i) a good, unendorsed certified check of Escrow Agent payable to the "ESCROWED FUNDS"order of such party, (ii) an unendorsed official bank or cashier's check payable to the order of such party, or (iii) a bank wire transfer of immediately available funds to an account designated in writing to Escrow Agent by such party.
(i) Upon receipt of a written demand from Seller or Purchaser under Section 18(a) (ii), (iii) or (iv), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in send a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice copy of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect demand to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.party within one (1)
Appears in 1 contract
Samples: Sale Purchase Agreement (Readers Digest Association Inc)
Escrow. (a) Escrow Agent will hold The parties hereto agree that [Israeli escrow agent agreed to by Company to be inserted upon Effective Date] shall act as escrow agent in connection with the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent Source Code for the holding purposes set forth herein ("Escrow Agent"). Within ten (10) Business Days after the Effective Date the parties will enter into an escrow agreement acceptable to Company (including without limitation sufficient levels of escrow funds until the earlier of (iverification) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, strict compliance with the interestterms hereof and governed by Israeli Law ("Escrow Agreement"). In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party Within five (5) Business Days to disputedays after the Acceptance of the System or any part thereof, or consent toContractor shall deposit into escrow with the Escrow Agent, under the terms of this Agreement and the Escrow Agreement, the Source Code, in such media as acceptable to Company, and shall update such Source Code to include all modifications, improvements, updates and upgrades thereto and to bring it current - upon each Change Request, Acceptance and new release but in any event not less than once per calendar quarter. Upon a Release Event (as hereinafter defined) Company and its designees shall obtain and Contractor hereby grants a perpetual, irrevocable, nonexclusive, nontransferable fully paid, royalty free license, with the right to sublicense (solely to contractors acting on behalf of Company), to use, modify, enhance and develop the Source Code as required to continue to enjoy its rights under this Agreement in respect of the Xxxxxxx Money DepositSystem, provided thatincluding for the purpose of the continued receipt of the Support Services. Release Event: (a) Contractor materially breaches it obligations under this Agreement and such breach is not remedied within (30) days after written notice thereof from Company; (b) Contractor materially fails to provide Support Services under the terms hereof and such failure is not remedied within twenty (20) days after written notice thereof from Company; (c) Contractor (and/or its licensor) becomes the subject of any Bankruptcy Event. All escrow related fees shall be borne by Contractor. Any dispute regarding the occurrence of a Release Event shall be determined solely by the Board of Directors of Company. Only the Source Code of third party off-the-shelf software set forth in Exhibit I hereto, if to the Closing occursextent explicitly pre-approved in writing by Company shall be excluded from deposit into escrow with the Escrow Agent, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on above. Provided that Contractor so notifies Company in writing, within five 5 days after the Closing Effective Date. Purchaser represents that its tax identification number, for purposes Contractor shall deposit the Source Code with Company, in lieu of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting deposit with the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconductas set forth in this Section 14.4, and the parties agree same terms and conditions set forth above shall apply in respect thereof, including in respect of the applicable media, updates, rights granted to indemnify Escrow Agent Company and hold Escrow Agent harmless from Release Event and further provided that Company or any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In third party on its behalf may conduct verification of the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselSource Code at levels at Company's sole discretion.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. Notwithstanding anything to the contrary contained herein, the parties agree that to the extent any of the New Permits have not been issued to Seller or cannot be transferred to Buyer on or before the Closing Date, with respect to the New Permit Assets related to such New Permit:
(a) the parties shall enter into an escrow agreement at Closing containing the terms and conditions set forth in this Section 2.10 and such other terms and conditions as may be mutually agreeable;
(b) there shall be deducted from the Purchase Price and deposited by Buyer with the Escrow Agent will hold an amount equal to the Xxxxxxx Money Deposit in escrow in an interest-bearing account Escrow Amount for each such New Permit which has not been issued or is not transferable;
(c) Seller shall operate the New Permit Assets on behalf of Buyer, as Buyer's agent. Seller shall pay all expenses of such operations from revenues derived from such sites (provided, that if such expenses exceed revenues, Buyer shall reimburse Seller for the excess upon termination of the type generally used escrow) and Seller shall deliver to Buyer on or before the 15th of each month a statement, certified by Escrow Agent Seller, setting forth Seller's determination of the Cash Flow for each site for the holding New Permit for the preceding month;
(d) upon issuance of the New Permit, the Escrow Amount for such New Permit, together with interest, shall be released from escrow funds until to Seller provided, however, that simultaneously therewith Seller shall deliver to Buyer an amount equal to the earlier aggregate Cash Flow since the Closing Date for the site for the New Permit;
(f) Seller hereby agrees to repurchase from Buyer all New Permit Assets related to any or all New Permits which have not been issued or obtained by December 15, 1997, upon written request by Buyer given on or prior to December 30, 1997, at a purchase price equal to the Escrow Amount for such New Permit Assets, plus interest, less the aggregate Cash Flow since the Closing Date for such New Permit Assets and the purchase shall be effected on or prior to December 31, 1997 as follows: Buyer shall execute and deliver appropriate transfer documents in favor of Seller, the aggregate Cash Flow since the Closing Date shall be retained by Seller and the Escrow Amount plus interest earned thereon, shall be delivered from the Escrow to Buyer; and
(ig) Notwithstanding anything to the Closingcontrary contained in this Section 2.10, if any New Permit is not issued because the Site Lease for the site for any such New Permit is cancelled or terminated after the Closing through no act or omission of Seller's, the option contained in subsection (iif) will not apply to the termination New Permit Assets related to such New Permit and the Escrow Amount plus interest earned thereon shall be released from escrow to Seller within five (5) days after cancellation or Termination of this Agreement in accordance with any right hereunderthe Site Lease; provided that simultaneously therewith Seller shall deliver to Buyer an amount equal to the aggregate Cash Flow since the Closing Date for such New Permit Assets. In the event Purchaser has not terminated this Agreement by that on or before the end of the Evaluation PeriodClosing, a Permit is cancelled or terminated, it shall be deemed a New Permit hereunder, and, in each case, the Xxxxxxx Money Deposit Structures, Permits, Site Leases and Advertising Services Agreements associated therewith shall be non-refundable to Purchaserdeemed New Permit Assets for all purposes hereunder, but shall be credited against including without limitation the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter provisions of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesSection 2.10.
Appears in 1 contract
Escrow. Within ten (a10) Escrow Agent will hold business days of Preliminary Approval, COP shall deposit $50,800,000 of the Xxxxxxx Money Deposit in escrow in an Settlement Amount into a special interest-bearing account “Qualified Settlement Fund” (as defined in Section 1.468B-1(a) of the type generally used U.S. Treasury Regulations) account (the “Escrow Account”) established by Escrow Agent the Settlement Administrator at Bank of America. Within ten (10) business days of Preliminary Approval or receipt of $250,000 from COP (whichever is later) to reimburse the Class Representative for the holding of escrow funds until Confirmation Process, Class Counsel shall deposit into the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with Escrow Account any right hereunder. In the event Purchaser has not terminated this Agreement by the end portion of the Evaluation Period, remaining $250,000 of the Xxxxxxx Money Deposit Settlement Amount (which will be separately invoiced to COP by Class Counsel) not used to reimburse the Class Representative for the costs associated with the Confirmation Process set forth in Section 2.2 above. The Settlement Amount shall be non-refundable to Purchaser, but shall be credited against held in the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid Escrow Account and subject to the party entitled terms and conditions of an escrow agreement and instructions, a copy of which is attached as Exhibit 1J to this Settlement Agreement (the Xxxxxxx Money Deposit“Escrow Agreement and Instructions”). In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, COP and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent named Plaintiff shall have the right to consult with separate counsel audit amounts paid from the Escrow Account. The cost of its own choosing settlement notice and claims administration (including any expenses of the Settlement Administrator) shall be paid from the Escrow Account following Preliminary Approval as needed. The Class Representative’s incentive award, Class Counsel’s attorneys’ fees (as approved by the First Judicial District Court), reimbursement of Class Counsel of all actual expenses of the Action (as approved by the First Judicial District Court), reimbursement of Class Counsel for the Confirmation Process, any other litigation costs of Plaintiff and all applicable taxes (including without limitation to New Mexico gross receipts taxes), if it deems any, shall be paid from the Escrow Account after Final Approval. The balance of the Net Settlement Amount shall be disbursed to Settlement Class Members as provided in the Court-approved Plan of Allocation after Final Approval. In no event, however, shall any money be disbursed to Settlement Class Members or paid out for the Class Representative’s incentive award, Class Counsel’s attorneys’ fees, reimbursement of Class Counsel of actual expenses, reimbursement of Class Counsel for the Confirmation Process, reimbursement of other litigation costs of Plaintiff, applicable taxes, if any, until the time for the Parties to exercise their termination rights pursuant to Section 5.4 has passed without the Parties exercising such consultation advisable) rights. Following COP’s deposit of $50,800,000 of the Settlement Amount into the Escrow Account in full, COP and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and Partnerships shall have no responsibility for liability, under any circumstances, to the genuineness Plaintiff, Settlement Class Members, Class Counsel, or validity of any document or other item deposited with it or the collectibility of any check delivered person in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesadministration or distribution of such Settlement Amount.
Appears in 1 contract
Samples: Settlement Agreement
Escrow. (a) On the Closing Date, TeleSpectrum shall cause to be distributed to the Indemnity Escrow Agent will hold (as defined below) a certificate or certificates and agreements representing the Xxxxxxx Money Deposit Escrow Securities (as defined below), which shall be registered in escrow in an interest-bearing account the name of the type generally used by Indemnity Escrow Agent as nominee for the holding holders of escrow funds until IDRC Common Stock (the earlier "IDRC Stockholders") and the holders of Escrow Options (ithe "IDRC Optionholders") the Closing, or (ii) the termination of this Agreement shall be held in accordance with any right hereunder. In the event Purchaser has not terminated provisions of this Section 1.6 and the Indemnity Escrow Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable referred to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000herein.
(b) Escrow Agent shall not be liable to At the Closing, as security for the payment of any party for any act or omission, except for bad faith, gross negligence or willful misconduct, indemnification obligations of the IDRC Stockholders and the parties agree IDRC Optionholders pursuant to indemnify Sections 7.2 or 7.3 hereof, the Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit Shares and the interest earned thereon Escrow Options shall be delivered to an indemnity escrow agent that is mutually satisfactory to TeleSpectrum and IDRC (the "ESCROWED FUNDSIndemnity Escrow Agent"). The term "Escrow Shares" ---------------------- means that number of shares of TeleSpectrum Common Stock issuable to IDRC Stockholders in the Merger (collectively, the "Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (iShares") continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds that, together ------------- with the clerk value of any court the Escrow Options, have an aggregate "Trading Value" of competent jurisdiction$12,000,000, rounded up to the nearest whole share. Upon such depositThe Escrow Shares and Escrow Options are collectively referred to as the "Escrow Securities." Of the ----------------- Escrow Securities, Escrow Agent securities having an aggregate Trading Value of $9,000,000 and $3,000,000 will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable held as security for any action takenindemnification obligations under Sections 7.2 and 7.3 hereof, suffered or omitted by it in accordance with respectively. As used herein, the advice term "Trading Value" means the average closing price of such counsel.
(c) one share of TeleSpectrum Common Stock as quoted on the NMS during the 25 trading days immediately preceding the Closing Date. For purposes of calculating the Trading Value of the Escrow Agent Securities, no value shall not be required to defend any legal proceeding which may be instituted against it with respect ascribed to the Escrowed FundsEscrow Options other than the value of each share of TeleSpectrum Common Stock underlying the Escrow Options, the Property or the subject matter each of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent which shall be fully protected valued at the Trading Value. The Escrow Securities, together with all cash and non-cash dividends and other property at any time received or otherwise distributed on, in acting respect of or in accordance with exchange for any written instructions given or all of the Escrow Securities, all securities hereafter issued in substitution for any of the foregoing, all certificates and instruments representing or evidencing such securities, all cash and non-cash proceeds of all of the foregoing property and all rights, titles, interests, privileges and preferences appertaining or incident to it hereunder and believed by it the foregoing property are referred to have been signed by together as the proper parties"Escrow Property." ---------------
Appears in 1 contract
Escrow. (a) On the Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation PeriodRelease Date, the Xxxxxxx Money Deposit Parties shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by jointly instruct ------ the Escrow Agent to Purchaser. In release the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released Escrow Fund to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, ; provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent Buyer shall not be required to defend so instruct the Escrow Agent if Buyer delivers an Indemnification Notice alleging (a) a breach of Seller's representation and warranty in Section 4.4(b) that would entitle Buyer to recover Damages (taking -------------- into account the limitations set forth in the first sentence of Section 8.7(a)), -------------- (b) a breach of Seller's obligation under the last sentence of Section 2.1 ----------- and/or (c) that it is entitled to indemnification pursuant to Section 8.3(a)(iv) ------------------ (each, an "Escrow Claim"). If the amount of funds in the Escrow Fund exceed the ------------ amount of Damages alleged in the Escrow Claim, the Parties shall jointly instruct the Escrow Agent to release any legal proceeding undisputed portion of the Escrow Fund (i.e., the amount by which may be instituted against it the amount in the Escrow Fund exceeds the amount of alleged Damages) to Seller on the Escrow Release Date, and the portion of the Escrow Fund representing the amount of alleged Damages alleged in the Escrow Claim shall remain in the Escrow Fund until release is authorized by the joint instructions of the Parties or in accordance with a judgment of a court of competent jurisdiction or in accordance with a decision of an arbitrator made pursuant to Section 9.4 (with such remaining ----------- portion of the Escrow Fund allocated between the Parties to reflect the agreement of the Parties with respect to the Escrowed Funds, the Property Escrow Claim or the subject matter decision of this Agreement unless requested an arbitrator with respect to do so by Purchaser or Seller and the amount of Damages, if any, to which Buyer is indemnified to its satisfaction against entitled as a result of the cost and expense of such defenseEscrow Claim). The Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent Fund shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed governed by the proper partiesterms set forth herein and in the Escrow Agreement.
Appears in 1 contract
Escrow. (a) The Xxxxxxx Money is deposited with Escrow Agent will hold with the understanding that Escrow Agent (i) is not a party to this Contract and does not assume or have any liability for performance or non-performance of any signatory, (ii) is not liable for any losses of escrow funds caused by the failure of any banking institution in which such funds have been deposited and (iii) shall deposit the Xxxxxxx Money Deposit in escrow in an interest-interest bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, with a financial institution or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable a financial instrument acceptable to Purchaser, but shall be credited against the Purchase Price at the ClosingBuyer. All interest earned accruing on the Xxxxxxx Money Deposit shall be paid for the benefit of Buyer and if the Xxxxxxx Money is returned to Buyer pursuant to the party provisions of this Contract, the interest thereon shall also be delivered to Buyer. Buyer and Seller hereby agree that in the event Buyer fails to timely purchase the Property as set forth in this Contract, Seller may make written demand on Escrow Agent, with a copy to Buyer, stating that Seller is entitled to the Xxxxxxx Money Depositpursuant to this Contract. In the event this Agreement is terminated prior Unless Buyer objects to the expiration such delivery of the Evaluation PeriodXxxxxxx Money to Seller within five (5) days, Escrow Agent is hereby irrevocably authorized and directed by Buyer and Seller to remit the Xxxxxxx Money to Seller without any duty or obligation to investigate the facts underlying Seller’s demand. Buyer and Seller hereby each indemnify, save harmless and agree to defend Escrow Agent from and against any claim, demand, costs or damages (including reasonable attorneys’ fees) incurred by Escrow Agent and arising from or with respect to Escrow Agent’s complying with such demand by Seller. At the Closing, the Xxxxxxx Money Deposit shall be delivered to Seller and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselSales Price.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Sterling Bancshares Inc)
Escrow. a. Seller and the Company agree to deliver an executed copy of this Agreement to the Company’s legal counsel, Xxxxxxxxxx PLLC (a) the “Escrow Agent”), by electronic mail to xxx@xxxxxxxxxxxxxx.xxx. The Escrow Agent will hold shall notify the Xxxxxxx Money Deposit in escrow in an interest-bearing parties hereto by electronic mail of its receipt of a signed copy of this Agreement by both parties. Once so notified, the Company shall pay or cause its designees to pay to the Escrow Agent’s IOLTA Trust account the Purchase Price. Upon receipt by the Escrow Agent of the type generally used by Purchase Price in full, subject to subsections (g) and (h) of this section, the Escrow Agent for shall promptly release the holding Purchase Price to Seller and release the fully signed copy of this Agreement to both parties. The date of such release shall be deemed to be the “Closing Date”. If the Closing Date does not occur within five (5) business days of the date of this Agreement, then either party may notify the other party and the Escrow Agent of its desire to terminate this Agreement and upon receipt of such notice by the other party and the Escrow Agent, this Agreement shall automatically become null and void.
b. Seller and the Company agree and acknowledge that Xxxxxx has requested Xxxxxx Agent to act as the escrow funds until agent, despite Xxxxxx Agent’s disclosure to Seller and the earlier Company that the Escrow Agent represents the Company in connection with the Sale and the Agreement, or other matters. Seller and the Company agree and acknowledge that the Escrow Agent has disclosed that the Escrow Agent’s representation of the Company in connection with the Sale, the Agreement, or any other matter may be adverse to (i) the Closing, its duties as Escrow Agent hereunder or (ii) its duties to the termination Seller, and therefore, an actual conflict of this Agreement in accordance with any right hereunderinterest may exist. In the event Purchaser has Escrow Agent does not terminated this Agreement by the end believe that its representation of the Evaluation PeriodCompany hereunder will impair its ability to perform its duties as Escrow Agent pursuant to the terms herein.
c. Seller and the Company have each had the opportunity to consult with counsel and with full knowledge of all relevant facts Seller and the Company acknowledge, agree and consent to Escrow Agent (i) continuing to act as Escrow Agent hereunder and (ii) continuing to represent the Company in the Sale, the Xxxxxxx Money Deposit shall be non-refundable to PurchaserAgreement, but shall be credited against and in any other matter, including, without limitation, any matter, claim, or dispute between the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement parties hereto, whether or not Escrow Agent is terminated prior to the expiration in possession of the Evaluation Periodescrowed funds and continues to act as Escrow Agent. TO THE EXTENT THAT ANY CONFLICT OR POTENTIAL CONFLICT ARISES, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. SELLER AND THE COMPANY, INDIVIDUALLY AND ON BEHALF OF SUCH PARTY’S SUCCESSORS AND ASSIGNS, WAIVE ANY OBJECTION THERETO.
d. In the event the Closing occursCompany elects to discontinue its engagement of Escrow Agent as its attorney, or should an adverse relationship arise between the Xxxxxxx Money Deposit Company and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount Seller acknowledges that Escrow Agent may continue without restriction to act as Escrow Agent hereunder.
e. The duties of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release be determined solely by the Xxxxxxx Money Deposit to either party until express provisions of this Agreement.
f. The parties acknowledge that the Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit is acting solely as a stakeholder at their request and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit for their convenience and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any either party for any act or omission, except for omission on its part unless taken or suffered in bad faith, faith or in willful disregard of this Agreement or involving gross negligence or willful misconduct, on the part of Escrow Agent. Seller and the parties Company hereby jointly and severally agree to indemnify Escrow Agent and hold save the Escrow Agent harmless from and against any and all loss, damage, claims, damagesliabilities, losses or judgments and other costs and expenses arising of every kind and nature (including reasonable attorney’s fees) incurred in connection herewithwith the performance of Xxxxxx Agent’s duties hereunder, except with respect to actions or omissions taken or suffered by Escrow Agent in bad faith or in willful disregard of this Agreement or involving gross negligence on the part of Escrow Agent.
g. If, notwithstanding payment of the Purchase Price to the Escrow Agent IOLTA Trust account and the Escrow Agent’s receipt of fully-executed copies of this Agreement pursuant to subsection (a) of this section, for any reason Closing has not occurred, and either party gives written notice to Escrow Agent demanding payment of the escrowed funds, Escrow Agent shall give prompt written notice to the other party of such demand. The parties acknowledge that If Escrow Agent does not receive written notice of objection from such other party to the proposed payment within 5 business days after the giving of such written notice, Escrow Agent is acting solely hereby authorized and directed to make such payment. If Escrow Agent does receive such written notice of objection within 5 business days or if for any other reason Escrow Agent in good faith shall elect not to make such payment, Escrow Agent shall continue to hold such amount until otherwise directed by written notice signed by the parties to this contract or by a final, nonappealable judgment, order or decree of a court.
h. If there is any dispute or doubt as stakeholder for their mutual convenienceto which party is entitled to the escrowed funds, the Escrow Agent shall hold the escrowed funds until otherwise directed by written notice from the parties to the Agreement or by a final, nonappealable judgment, order or decree of a court. In the event Escrow Agent receives written notice of such a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS")dispute, Escrow Xxxxxx Agent shall not be bound to release and deliver have the Escrowed Funds to either party but may either right to: (i) continue commence an interpleader action for the purpose of determining the persons or entities to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or whom payment should be made; (ii) deposit the Escrowed Funds escrowed funds with the clerk of any a court of competent jurisdiction. Upon in the county in which the Property is located; or (iii) take such deposit, affirmative steps as it may elect in order to substitute an impartial party to hold the escrowed funds and to terminate its duties as Escrow Agent will be released from all duties and responsibilities hereunderAgent. Escrow Agent shall have a first lien on all funds held by it for its reasonable compensation or for any reasonable cost, liability, expense or fee, including reasonable attorney's fees, which it may incur in connection with the right disbursement of funds or upon it being made a party to consult any legal or equitable proceedings which is brought by any of the parties hereto concerning the disposition of the funds held hereunder. If any controversy arises hereunder, or Escrow Agent is made a party to, or intervenes in, any litigation pertaining to the escrowed funds, Escrow Agent shall be reasonably compensated for such extraordinary services, and shall be reimbursed for all reasonable costs and expense occasioned by such controversy or litigation.
i. Upon disbursement in accordance with separate the terms of this Agreement, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
j. Escrow Agent may act or refrain from acting in respect of any matter referred to herein in full reliance upon and with the advice of counsel which may be selected by it (including any member of its own choosing (if it deems such consultation advisablefirm) and shall not be liable for any fully protected in so acting or refraining from action taken, suffered or omitted by it in accordance with upon the advice of such counsel.
(c) k. The Escrow Agent shall not be required entitled to defend rely on any legal proceeding which instrument or signature believed by it to be genuine and may be instituted against it assume that any person purporting to give any writing, notice or instruction in connection with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested is duly authorized to do so by Purchaser the party on whose behalf such writing, notice or Seller and instruction is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesgiven.
Appears in 1 contract
Samples: Agreement to Transfer Option and Amendatory Agreement (Marizyme Inc)
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by provides a Notice to Proceed to Seller prior to the end expiration of the Evaluation PeriodPeriod pursuant to Section 5.3(c) herein, the Xxxxxxx Money Deposit shall shall, except as otherwise provided in this Agreement, be non-refundable to Purchaser, but Purchaser and shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be become part of the Xxxxxxx Money Deposit and shall paid to the party entitled to the Xxxxxxx Money DepositDeposit pursuant to the terms of this Agreement. In the event this Agreement is terminated prior to the expiration of the Evaluation PeriodPeriod pursuant to Section 5.3(c) herein, then the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to PurchaserPurchaser within one (1) Business Day following any such termination. In the event this Agreement is terminated for any other reason, then the Xxxxxxx Money Deposit will be disbursed by the Escrow Agent to the party entitled thereto pursuant to the applicable terms and provisions of this Agreement. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested in writing by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party written notice of such request and five (5) Business Days thereafter to dispute, or consent to, the release of the Xxxxxxx Money Deposit; provided, provided thathowever, that if this Agreement is terminated prior to the Closing occursexpiration of the Evaluation Period pursuant to Section 5.3(c), then Escrow Agent is authorized to, and shall, deliver the Xxxxxxx Money Deposit to Purchaser within one (1) Business Day following any such termination, and interest thereon will be applied as set forth above on the Closing Dateneither Seller nor Purchaser shall have any right to object to such delivery to Purchaser or disbursement to Seller. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its it is a disregarded entity as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii) (“Disregarded Entity”). Xxxx-Xxxx Realty, L.P. (“Owner”) is the direct owner of Seller and is not a Disregarded Entity. Seller represents that Owner’s tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for Escrow Agent’s bad faith, gross negligence negligence, willful misconduct or willful misconductbeach of this Agreement, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith, except to the extent arising from Escrow Agent’s bad faith, gross negligence, willful misconduct or breach of this Agreement. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS")Deposit, Escrow Agent shall not be bound to release and deliver the Escrowed Funds Xxxxxxx Money Deposit to either party but may either (i) continue to hold the Escrowed Funds Xxxxxxx Money Deposit until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds Xxxxxxx Money Deposit with the clerk of any court of competent jurisdictionjurisdiction if such dispute is not resolved within ninety (90) days of notice thereof. Upon such deposit, Escrow Agent will be released from all further duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the reasonable advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed FundsXxxxxxx Money Deposit, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and unless Escrow Agent is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility collectability of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in good faith in accordance with any written instructions given to it hereunder and believed by it in good faith to have been signed by the proper parties.
(d) Escrow Agent acknowledges and agrees to the terms and provisions of Article IV of this Agreement.
(e) The provisions of this Article XVII shall survive Closing or the earlier termination of this Agreement.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Escrow. The Purchaser Indemnitees right to indemnification from a Stockholder pursuant to this Article 6 shall be satisfied out of such Stockholder’s Pro Rata Portion of the Escrow Amount before the Purchaser Indemnitees may seek, if permitted to do so under this Agreement, indemnification directly from such Stockholder. Six months after the Closing Date (a) the “Initial Release Date”), the Escrow Agent will hold shall release to each Stockholder his or her Pro Rata Portion of an aggregate amount (the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of “Initial Release Amount”) equal to $650,000 less (i) the Closingall amounts utilized to pay any Purchaser Indemnitee for any indemnification claims on or prior to such date, or and (ii) an amount equal to the termination amount of claims for indemnification under this Agreement Article 6 asserted prior to Initial Release Date but not yet resolved; provided that in accordance with no event shall the Initial Release Amount be less than $0. On the first anniversary of the Closing Date, the Escrow Agent shall release to each Stockholder his or her Pro Rata Portion of the remaining portion of the Escrow Amount (to the extent not utilized to pay any right hereunder. In Purchaser Indemnitee for any indemnification claim), except that the event Purchaser has not terminated this Agreement Escrow Agent shall retain an amount (up to the total amount then held by the end Escrow Agent) equal to the amount of the Evaluation Period, the Xxxxxxx Money Deposit claims for indemnification under this Article 6 asserted prior to such first anniversary but not yet resolved (“Unresolved Claims”). The Escrow Amount retained for Unresolved Claims shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned released by the Escrow Agent (to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released extent not utilized to Seller, and pay any Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party Indemnitees for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising such claims resolved in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk favor of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisablePurchaser Indemnitees) and shall not be liable for any action taken, suffered or omitted by it upon their resolution in accordance with this Article 6 and the advice terms of such counselthe Escrow Agreement.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. (a) If there is any dispute as to whether Escrow Agent will hold is obligated to deliver the Xxxxxxx Money Deposit Money, or any other monies or documents which it holds or as to whom such Xxxxxxx Money, monies or documents are to be delivered, Escrow Agent shall not be obligated to make any delivery, but, in escrow in an interest-bearing account of the type generally used such event, may hold same until receipt by Escrow Agent for of an authorization, in writing, signed by all of the holding parties having an interest in such dispute directing the disposition of escrow funds same, or, in the absence of such authorization, Escrow Agent may hold such Xxxxxxx Money, monies or documents until the earlier final determination of (i) the Closingrights of the parties in an appropriate proceeding. If such written authorization is not given or proceeding for such determination is not begun and diligently continued, Escrow Agent may, but is not required to, bring an appropriate action or (ii) proceeding for leave to deposit such Xxxxxxx Money, monies or documents in court, pending such determination. Escrow Agent shall not be responsible for any acts or omissions unless the termination same constitutes gross negligence or willful misconduct and upon making delivery of this Agreement the Xxxxxxx Money, monies or documents which Escrow Agent holds in accordance with any right the terms of this Agreement, Escrow Agent shall have absolutely no further liability hereunder. In the event Purchaser has not terminated this Agreement by Escrow Agent places the end Xxxxxxx Money, monies or documents that have actually been delivered to Escrow Agent in the Registry of the Evaluation PeriodCircuit Court in and for the County in which the Property is located and files an action of interpleader, naming the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instancesparties hereto, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller be released and relieved from any and all further obligation and liability hereunder or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000in connection herewith. Seller represents that its tax identification numberand Purchaser shall and do hereby, for purposes of reporting the interest earningsjointly and severally, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all damages, losses, liabilities, claims, damages, losses or costs and expenses arising hereunder or in connection herewith. The parties acknowledge that , including but not limited to, all costs and expenses incurred by Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with the filing of such action including, but not limited to, reasonable attorney and paralegal fees and expenses for Escrow Agent's attorneys through all trial and appellate levels. IT IS ACKNOWLEDGED THAT ESCROW AGENT MAY ACT AS THE COUNSEL FOR SELLER. IT IS AGREED THAT ESCROW AGENT SHALL NOT BE DISABLED OR DISQUALIFIED FROM REPRESENTING SELLER IN CONNECTION WITH ANY LITIGATION WHICH MIGHT ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT BY VIRTUE OF THE FACT THAT ESCROW AGENT HAS AGREED TO ACT AS ESCROW AGENT HEREUNDER, AND PURCHASER DOES HEREBY WAIVE ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THE FOREGOING. The provisions of this Section 10.17 shall survive the Closing or any termination of this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Escrow. On the Closing Date, Buyer will deposit with an escrow agent mutually agreeable to Seller and Buyer (athe “Escrow Agent”) the Escrow Amount to be held in escrow pursuant to the terms and conditions of an Escrow Agreement in the form mutually agreeable to Seller and Buyer (the “Escrow Agreement”) for the purpose of providing a source of funds to reimburse Buyer for any Buyer Loss. Within ten (10) days after the Closing Working Capital has been finally determined in accordance with Section 2.06, the Escrow Agent will hold shall be directed to distribute from the Xxxxxxx Money Deposit in escrow in an interest-bearing account Escrow Amount the amount of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of One Million Five Hundred and No/100 ($1,500,000.00), (i) the Closing, or less any Post-closing Adjustment Amount entitled to be received by Buyer pursuant to Section 2.06; and (ii) less the termination amount of this Agreement in accordance with any right hereunder. In Buyer Loss paid or payable from the event Purchaser Escrow Amount for which Buyer has not terminated this Agreement by the end given proper notice; payable pro rata to each of the Evaluation Periodholders of Seller Common Stock who were entitled to receive the Merger Consideration pursuant to Section 2.02(a). Pursuant to the Escrow Agreement, Buyer must provide the Xxxxxxx Money Deposit shall be non-refundable to PurchaserSelling Parties Representative with notice of claims, but shall be credited against in the Purchase Price at the Closing. All interest earned form of an officer’s certificate for any Buyer Loss for which Buyer seeks recovery or before 11:59 p.m. Eastern Time on the Xxxxxxx Money Deposit first anniversary of the Closing Date (the “Expiration Date”). Pursuant to the terms of the Escrow Agreement, Buyer shall be paid from the Escrow Amount the amount equal to the party entitled to Buyer Loss for which there is no objection in the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by periods set forth in the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent Agreement or for which any objection has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to disputeresolved, or consent tois deemed to have been resolved, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice provisions of such counsel.
(c) the Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Any remaining Escrow Agent Amount and interest at the Expiration Date, except for adequate reserves for pending claims, shall be fully protected in acting in accordance with any written instructions given distributed pro rata to it hereunder and believed by it each of the holders of Seller Common Stock who were entitled to have been signed by receive the proper partiesMerger Consideration pursuant to Section 2.02(a).
Appears in 1 contract
Samples: Merger Agreement (Rexnord LLC)
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) At the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against withhold from the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid payable to Seller pursuant to Section 2.1 an amount of cash equal to the party entitled to sum of (A) the Xxxxxxx Money Deposit. In First Escrow Amount, plus (B) the event this Agreement is terminated prior to Second Escrow Amount, plus (C) the expiration of Third Escrow Amount, plus (D) the Evaluation PeriodFourth Escrow Amount, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against plus (E) the Purchase Price in Escrow Amount, and shall promptly deposit the amount of First Escrow Amount, Second Escrow Amount, Third Escrow Amount, Fourth Escrow Amount and the Xxxxxxx Money Deposit, with the interest. In all instances, Purchase Price Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party Amount into five (5) Business Days separate escrow accounts with U.S. Bank N.A., as escrow agent (the “Escrow Agent”), and such deposit, together with any interest that may be earned thereon, shall constitute four (4) escrow funds (the “First Escrow Fund,” “Second Escrow Fund,” “Third Escrow Fund,” “Fourth Escrow Fund,” and the “Purchase Price Escrow Fund,” respectively) to disputesecure the indemnification obligations of Seller pursuant to Section 12.2(d) below. The First Escrow Fund, Second Escrow Fund, Third Escrow Fund, Fourth Escrow Fund and the Purchase Price Escrow Fund shall be maintained, administered and distributed pursuant to the terms of an escrow agreement substantially in the form attached hereto as Exhibit C (the “Escrow Agreement”). The First Escrow Fund shall be available solely to compensate the Purchaser Indemnified Parties for Losses pursuant the indemnification obligations of Seller under Section 12.2(d) in respect of the matters described in item 1 of Schedule 12.2(d) until 11:59 p.m. Pacific Standard Time on February 15, 2011 (such date, the “Escrow Release Date”), subject to the terms of the Escrow Agreement (including, without limitation, with respect to Unresolved Claims (as defined therein)). The Second Escrow Fund shall be available solely to compensate the Purchaser Indemnified Parties for Losses pursuant to the indemnification obligations of Seller under Section 12.2(d) in respect of the matters described in item 2 of Schedule 12.2(d) until 11:59 p.m. Pacific Standard Time on the Escrow Release Date, subject to the terms of the Escrow Agreement (including, without limitation, with respect to Unresolved Claims (as defined therein)). The Third Escrow Fund shall be available solely to compensate the Purchaser Indemnified Parties for Losses pursuant to the indemnification obligations of Seller under Section 12.2(d) in respect of the matters described in item 3 of Schedule 12.2(d) until 11:59 p.m. Pacific Standard Time on the Escrow Release Date, subject to the terms of the Escrow Agreement (including, without limitation, with respect to Unresolved Claims (as defined therein)). The Fourth Escrow Fund shall be available solely to compensate the Purchaser Indemnified Parties for Losses pursuant to the indemnification obligations of Seller under Section 12.2(d) in respect of the matters described in item 4 of Schedule 12.2(d) until 11:59 p.m. Pacific Standard Time on the Escrow Release Date, subject to the terms of the Escrow Agreement (including, without limitation, with respect to Unresolved Claims (as defined therein)). The Purchase Price Escrow Fund shall be available solely to pay Purchaser any Net Working Capital Negative Adjustment, Excess Net Debt Negative Adjustment and/or Seller Transaction Expenses Negative Adjustment (each as defined in Section 2.3), plus, if applicable, one-half (1/2) of the Reviewing Accountant Fees until the Escrow Agent distributes the Purchase Price Escrow Fund following its receipt of the Purchase Price Escrow Release Notice (such date, the “Purchase Price Escrow Release Date”), subject to the terms of the Escrow Agreement (including, without limitation, with respect to Unresolved Claims (as defined therein)). All earnings, distributions, interest or other income earned from the investment of the First Escrow Amount, Second Escrow Amount, Third Escrow Amount, Fourth Escrow Amount and the Purchase Price Escrow Amount or any portion thereof shall be added to and become part of the First Escrow Fund, Second Escrow Fund, Third Escrow Fund, Fourth Escrow Fund and the Purchase Price Escrow Fund, respectively, and shall be distributed pursuant to the Escrow Agreement. A portion of the payments from the First Escrow Fund, Second Escrow Fund, Third Escrow Fund, Fourth Escrow Fund and the Purchase Price Escrow Fund shall be treated as imputed interest to the extent required under the Code. Notwithstanding anything herein to the contrary, in the event the matters described in either item 1, item 2, item 3 or item 4 of Schedule 12.2(d) are Table of Contents settled, compromised or resolved in a manner that Purchaser reasonably and in good faith concludes could not reasonably be expected to result in any Assumed Liability (or otherwise create or result in any Liability to Purchaser or its Affiliates, including any Seller Subsidiary), or consent tootherwise to Purchaser’s reasonable satisfaction, the release of the Xxxxxxx Money Depositin each case, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on prior to the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earningsFirst Escrow Fund, is 00-0000000. Seller represents that its tax identification numberSecond Escrow Fund, for purposes of reporting the interest earningsThird Escrow Fund or Fourth Escrow Fund, is 00-0000000.
(b) Escrow Agent as applicable, shall not be liable withheld from the Purchase Price pursuant to Section 2.1, and shall instead be paid to Seller at Closing. For the avoidance of doubt, Purchaser’s right to indemnification pursuant to this Section 2.2 and Section 12.2(d) will not be subject to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and of the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising limitations set forth in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselSection 12.4.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. The Xxxxxxx Money Deposit is deposited with the Escrow Agent with the understanding that the Escrow Agent is not (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent a party to this contract and does not have any liability for the holding performance or nonperformance of escrow funds until the earlier of (i) the Closing, any party to this contract or (iib) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All liable for interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. The Escrow Agent shall comply with applicable rules of the Texas Department of Insurance and deposit the Xxxxxxx Money with an insured financial institution upon its receipt. On or before June 30, 2006 at 5:00 o'clock p.m the Escrow Agent shall either apply the Xxxxxxx Money toward Buyer's purchase price at closing or forward the Xxxxxxx Money to Seller in the event the Buyer fails to close before said time, (due to no fault of the Seller.) In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of both parties make written demand for the Xxxxxxx Money Deposit, with the interestEscrow Agent may require the payment of unpaid expenses incurred on behalf of the parties and a written release of all liability of the Escrow Agent from all parties. In all instancesIf one party makes written demand for the Xxxxxxx Money Deposit, the Escrow Agent shall give notice of the demand by providing to the other party a copy of the demand. If the Escrow Agent does not release receive written objection to the demand by providing to the other party within thirty (30) days after notice to the other party, the Escrow Agent may disburse the Xxxxxxx Money Deposit to either the party until Escrow Agent has been requested making demand reduced by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release amount of unpaid expenses incurred on behalf of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to receiving the Xxxxxxx Money Deposit and the interest earned thereon (Escrow Agent may pay the "ESCROWED FUNDS")same to the creditors. If the Escrow Agent complies with the provisions of this paragraph, each party hereto releases the Escrow Agent from all adverse claims related to the disbursal of the Xxxxxxx Money Deposit. The Escrow Agent's notice to the other party will be effective when deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, addressed to the other party at such party's address shown below. Notice of objection to the demand will be deemed effective upon receipt by the Escrow Agent. In the event of a disagreement between Seller and Buyer over entitlement to the Xxxxxxx Money, the Escrow Agent shall not be bound to release and deliver interplead the Escrowed Funds to either party but may either (i) continue to hold sum into the Escrowed Funds until otherwise directed registry of the District Court in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such depositXxxxxxxx County, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselTexas.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wentworth Energy, Inc.)
Escrow. Purchaser and Seller, together with NationsBank, N.A. as ------ escrow agent (athe "Escrow Agent"), shall execute and deliver an escrow agreement substantially in the form of Exhibit A attached hereto and made a part hereof --------- (the "Escrow Agreement"), pursuant to the terms of which Purchaser shall deliver to the Escrow Agent, for the account of Seller, Two Million Dollars ($2,000,000) in accordance with Paragraph 3.c. hereof (collectively, the "Escrow Agent will hold the Xxxxxxx Money Deposit in escrow Funds"), to be held in an interest-bearing account in accordance with the terms and conditions of the type generally used by Escrow Agent for Agreement. The Escrow Funds shall secure the holding indemnification obligations of escrow funds until Seller and the earlier of Principals as set forth herein and specifically including, but not limited to, to Paragraph 19 below. The Escrow Agreement will further provide that (i) the Closing, or thirty-three and one-third percent (ii33- 1/3%) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned Escrow Funds held by the Escrow Agent to Purchaser. In at the event expiration of twelve (12) months following the Closing occurs, Date (the Xxxxxxx Money Deposit and all interest accrued thereon "First Release Date") will be released to SellerSeller on the First Release Date, and Purchaser shall receive a credit against to the Purchase Price extent they exceed any outstanding claims (as defined in the amount Escrow Agreement) as of such First Release Date; (ii) fifty percent (50%) of the Xxxxxxx Money Deposit, with Escrow Funds held by the interest. In all instances, Escrow Agent shall not release at the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five expiration of twenty-four (524) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if months following the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon Date (the "ESCROWED FUNDSSecond Release Date"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. to Seller on the Second Release Date, to the extent they exceed any outstanding claims (as defined in the Escrow Agreement) as of such Second Release Date; (iii) the balance of the Escrow Funds held by the Escrow Agent shall have at the right expiration of thirty-six (36) months following the Closing Date (the "Third Release Date") will be released to consult with separate counsel of its own choosing Seller on the Third Release Date, to the extent they exceed any outstanding claims (if it deems such consultation advisableas defined in the Escrow Agreement) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice as of such counsel.
Third Release Date; and (civ) any Escrow Funds not released on the Third Release Date shall be released to Seller as soon thereafter as there are no claims outstanding as more particularly described in the Escrow Agreement. Purchaser and Seller will share all expenses of the Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesequally.
Appears in 1 contract
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) At the Closing, or RCE shall deposit $12,000,000 (iithe ------ "Escrow Amount") and deliver the termination of this Agreement in accordance with any right hereunder. In Escrow Amount to an escrow agent (the event Purchaser has not terminated this Agreement by the end of the Evaluation Period"Escrow Agent") as described herein, the Xxxxxxx Money Deposit shall to be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned held by the Escrow Agent to Purchasersecure the rights of RCE and any other RCE Indemnitee to (i) indemnity under Article VII and (ii) any Post-Closing Working Capital Adjustment that may be due to RCE pursuant to section 2.12 below, all in accordance with the terms of this Agreement and the Escrow Agreement. RCE shall also (x) deposit into the Escrow Account an amount equal to the tax benefit, if any, of the part of the Other HIT Consideration relating to the Participants' Earnout Consideration, if any, promptly following the final determination of the Earnout Payment and the amount of such tax benefit, if any, and (y) deposit into the Escrow Account for distribution to the Escrow and Earnout Participants pursuant to the Escrow Agreement an amount equal to the tax benefit, if any, of the part of the Other HIT Consideration relating to the Escrow Participation Amount, if any, promptly following the end of the Escrow Period and the final determination of the amount of such tax benefit, if any. The Escrow Amount shall be held pursuant to the terms of the Escrow Agreement. The Escrow Amount will be held by the Escrow Agent for a period to end as set forth in the Escrow Agreement (the "Escrow Period"); provided, however, that in the event RCE has made a claim under the Escrow Agreement prior to the end of the Escrow Period, then the Escrow Period shall continue (and the Escrow Agent will continue to hold, in accordance with the Escrow Agreement some or all of the Escrow Amount, as required by the Escrow Agreement), until such claim is fully and finally resolved, all as provided in the Escrow Agreement. In the event that this Agreement is adopted by the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount holders of the Xxxxxxx Money DepositLearning Curve Shares, with the interest. In then all instancessuch holders shall, Escrow Agent shall not release the Xxxxxxx Money Deposit without any further act of any holder, be deemed to either party until Escrow Agent has been requested by Seller or Purchaser have consented to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either approved (i) continue the use of the Escrow Amount to hold secure the Escrowed Funds until otherwise directed rights of RCE and the Learning Curve Surviving Corporation in a writing signed by all parties hereto or the manner set forth herein and in the Escrow Agreement, and (ii) deposit the Escrowed Funds appointment of the Shareholder Representatives as the representatives of the persons receiving Merger Consideration under this Agreement and as the attorney-in-fact and agent for and on behalf of each such person (other than holders of Dissenting Shares). RCE shall promptly deliver a notice to the Escrow Agent pursuant to section 5(h) of the Escrow Agreement, with a copy to the clerk Shareholder Representatives, after the Litigation has resolved by a settlement agreement or a Court Order of any a court or other tribunal of competent jurisdiction. Upon such deposit, jurisdiction and time for appeal has expired and no appeal has been perfected as more particularly described in section 5(h) of the Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselAgreement.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. 1. At the Effective Time, Enterprise, the Subs, Sumter One, Sumter Two and the Stockholders shall execute and deliver an escrow agreement substantially in the form of Exhibit A hereto (athe "Escrow Agreement") under which a person mutually satisfactory to Enterprise, Sumter One, Sumter Two and the Stockholders shall act as escrow agent (the "Escrow Agent will hold Agent") with respect to the Xxxxxxx Money Deposit Enterprise Common Stock deposited with the Escrow Agent. Enterprise shall deposit the Escrow Amount with the Escrow Agent, which shall be withheld from the Merger Consideration payable to the Stockholders after the Mergers as provided in escrow in an interest-bearing account of Section 1.8.
2. Subject to the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination provisions of this Section 1.9 and the Escrow Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit Escrow Amount shall be paid to the party entitled Stockholders or to Enterprise as follows:
(i) As promptly as practicable after the 90th day following the Effective Date hereof (but in no event later than the 120th day following the Effective Date), Enterprise shall deliver to the Xxxxxxx Money Deposit. In Stockholders a written statement setting forth the event this Agreement is terminated prior to the expiration amount of all or any portion of the Evaluation PeriodReceivables, excluding the Xxxxxxx Money Deposit and all interest accrued thereon will be returned Receivables described in item 2 of Schedule 3.7, on the Effective Date (the "Effective Date Receivables") which shall not have been collected by Enterprise within 90 days after the Escrow Agent to PurchaserEffective Date. In the event the Closing occursamount of such uncollected Effective Date Receivables exceeds the Effective Date Reserve, then Enterprise shall deliver written notice to the Xxxxxxx Money Deposit Stockholders and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in Escrow Agent specifying the amount of such excess and the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release promptly and in accordance with the Xxxxxxx Money Deposit terms of the Escrow Agreement deliver to either party until Enterprise from the Escrow Agent has been requested Amount shares of Enterprise Common Stock sufficient to cover such excess. With respect to collection of Effective Date Receivables, remittances to the Surviving Corporations made by Seller or Purchaser any account debtor shall, unless otherwise specified by the account debtor on account of a dispute with respect to release an invoice for services rendered prior to the Xxxxxxx Money Deposit and has given Effective Time, be credited to the other party five (5) Business Days invoices bearing the earliest dates. If Enterprise Common Stock is delivered to dispute, or consent toEnterprise from the Escrow Amount pursuant to this Section 1.9(b)(i), the release Surviving Corporations shall assign to the Stockholders all Effective Date Receivables not collected by the Surviving Corporations within 90 days after the Effective Date. Thereafter, the Stockholders shall promptly remit to Enterprise funds in the amount, if any, by which the Stockholders' collections of such assigned Effective Date Receivables exceeds the value of the Xxxxxxx Money Deposit, provided that, if Enterprise Common Stock delivered to Enterprise from the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable Amount pursuant to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual conveniencethis Section 1.9(b)(i). In the event that the amount of such uncollected Effective Date Receivables is less than or equal to the Effective Date Reserve, then Enterprise shall deliver written notice to the Stockholders and the Escrow Agent receives specifying that the Escrow Agent shall promptly and in accordance with the terms of the Escrow Agreement deliver to the Stockholders from the Escrow Amount an amount of Enterprise Common Stock equal to $2.5 million. In the event that the amount of uncollected Effective Date Receivables exceeds the Effective Date Reserve and such excess is less than $2.5 million, then Enterprise shall deliver written notice to the Escrow Agent specifying that the Escrow Agent shall promptly and in accordance with the terms of a dispute the Escrow Agreement deliver to the Stockholders from the Escrow Amount an amount of Enterprise Common Stock equal to the difference between such excess and $2.5 million; and
(ii) 270 days following the parties Effective Date, the balance of the Escrow Amount, less the sum of (a) any amount requested to be disbursed from the Escrow Amount pursuant to clause (i) above which amount has not yet been paid, (b) the amount of all claims for indemnification for Losses asserted in writing within such 270 day period and arising out of or resulting from the breach of the representations and warranties set forth in Sections 3.7 and 3.8 (but, with respect to the Xxxxxxx Money Deposit representation and warranty in Section 3.8, only with respect to (x) Liabilities which, in accordance with U.S. GAAP, should be reflected or reserved for on the Reference Balance Sheet, (y) Liabilities which should be reflected or reserved for on the Interim Balance Sheet, other than the Excluded Adjustments, on a basis consistent with the past practice of Sumter One and Sumter Two and (z) the Agreed Items) that have not been finally resolved, shall be delivered to the Stockholders.
3. For all purposes of this Agreement and the interest earned thereon (Escrow Agreement, whenever shares of Enterprise Common Stock shall be required to be delivered to satisfy a payment or indemnity obligation of any party hereto, each share of Enterprise Common Stock shall be deemed to be valued at the "ESCROWED FUNDS")Fair Market Value, Escrow Agent notwithstanding the actual market or other value of the shares of Enterprise Common Stock at the time of the delivery of such shares. In the event of any stock split, reverse stock split, stock combination or reclassification of the shares of Enterprise Common Stock or any merger, consolidation or combination of Enterprise with any other entity or entities, the deemed value specified above for the shares of Enterprise Common Stock shall not be bound proportionally adjusted so that the deemed value of the shares of Enterprise Common Stock after such event shall be the same as the deemed value of the shares of Enterprise Common Stock prior to release such event. All such adjustments shall be made successively.
4. The Stockholders and deliver their representatives shall be entitled to inspect all of the Escrowed Funds work papers, schedules and other supporting documentation relating to either party but may either the calculation of the uncollected Effective Date Receivables pursuant to clause (i) continue of Section 1.9(b) and the calculation of any Losses pursuant to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or clause (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselSection 1.9(b).
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. (a) The Attrition Escrow Agent will hold shall be for a twelve (12) month period commencing on the Xxxxxxx Money Deposit in escrow in an interest-bearing account Closing Date (the "Attrition Escrow Period"). A determination shall be made as of the type generally used by last day of the Attrition Escrow Agent for Period of the holding of escrow funds until RMR on the earlier of date immediately preceding the Closing Date attributable to customers who have, during the Attrition Escrow Period, (i) become more than sixty (60) days past due from the Closinginvoice date (and who remain more than sixty (60) days past due as of the last day of the Attrition Escrow Period), (ii) who have canceled or failed to renew for any reason, or (iiiii) who have been canceled or terminated by Buyer for excessive false alarms or other customer abuses (the termination "Lost RMR"). Buyer shall notify Seller by the end of each calendar month of all customers who during the prior calendar month went into default (a "Defaulted Account") so that Seller may have an opportunity to either rectify such account or repurchase such account within thirty (30) days after notification. If Seller elects to repurchase the account, the repurchase price shall be an amount equal to twenty-six (26) times the RMR generated by such account at Closing less forty percent (40%) of the amount of any recurring revenue-related payments actually received by Buyer for the period after Closing from such account prior to repurchase. An account will be deemed to be in default for purposes of this Agreement Section 2.3 if it is canceled (by Buyer for excessive false alarms or other customer abuses or by the customer for any reason), fails to renew or if any charges are not paid within sixty (60) days from the invoice date. If Seller rectifies a Defaulted Account, repurchases such account or provides a replacement account acceptable to Buyer within thirty (30) days after notification by Buyer, such Defaulted Account shall not be included in accordance with Lost RMR. The Purchase Price shall be reduced by a multiple of twenty-six (26) times the Lost RMR less forty percent (40%) of the amount of any right hereunderrecurring revenue-related payments actually received by Buyer for the period after Closing from the accounts included in Lost RMR (the "Purchase Price Deduct"). As soon as possible after the end of the Attrition Escrow Period, the parties shall direct the escrow agent, in writing, to pay Seller the difference between the amount of the Attrition Escrow less the amount of the Purchase Price Deduct. In the event Purchaser has not terminated Seller repurchases any accounts under this Agreement Section 2.3, Seller shall indemnify and hold Buyer harmless from and against any Aggregate Net Loss (as defined in Section 8.1) incurred by Buyer in connection with such account from and after the end date of repurchase.
(b) The Tax Escrow shall provide a source for the settlement of any tax liabilities of Seller, Seller's shareholders (both past and present) or 21st Century, or otherwise relating to the operation of the Evaluation PeriodSecurity Business prior to Closing, the Xxxxxxx Money Deposit imposed upon or assessed against Buyer. The Tax Escrow shall be non-refundable released as follows:
(i) upon receipt of documentation from a taxing authority in a form reasonably acceptable to PurchaserBuyer evidencing that the Assets to be Acquired are not covered by a tax lien listed on Schedule 2.3(b), but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid a sum equal to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration principal amount of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will such tax lien as reflected on Schedule 2.3(b) shall be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit upon a full and final discharge by a taxing authority of a tax lien listed on Schedule 2.3(b), an amount equal to the Escrowed Funds with the clerk principal amount of any court of competent jurisdiction. Upon such deposit, Escrow Agent will tax lien shall be released from to Seller, or in the event Seller is unable to obtain the full and final discharge of all duties and responsibilities hereunder. tax liens of record during the first twelve (12) months of the Tax Escrow Agent Period (as herein defined), then the Buyer shall have the right to consult negotiate with separate counsel all interested taxing authorities the release of its own choosing any tax liens filed against Seller or 21st Century and to cause to be released from the Tax Escrow, at Buyer's sole direction, for payment to such taxing authorities, such amounts as are necessary to cause the release of any or all such tax liens, or (if it deems such consultation advisableiii) and at Buyer's direction, after five (5) days notice to Seller, to any taxing authority as necessary to avoid foreclosure on any of the Assets to be Acquired. The Tax Escrow shall not be liable remain in effect (the "Tax Escrow Period") for any action taken, suffered or omitted by it in accordance with the advice a period of such counselthirty-six (36) months from Closing.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent The Chip Change Credit shall be fully protected in acting distributed from escrow in accordance with any written instructions given Section 10.1.
(d) Nothing herein shall be deemed to it hereunder and believed by it limit Buyer's right to have been signed by proceed against Seller for account attrition or other liabilities beyond the proper partiesamount of the Attrition Escrow or Tax Escrow.
Appears in 1 contract
Samples: Asset Purchase Agreement (Masada Security Holdings Inc)
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-interest bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but except as otherwise set forth herein,, and shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to the Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with including the interest. In all other instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, dispute the release of the Xxxxxxx Money Deposit. If no dispute is so delivered, provided that, if the Closing occurs, Escrow Agent shall disburse the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Datedirected. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"“Escrowed Funds”), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
Escrow. (a) Escrow Agent will hold At the Xxxxxxx Money Deposit in escrow in an interest-bearing account U.S. Closing, $12,000,000 of the type generally used Purchase Price otherwise payable by the Buyer to the Sellers shall be delivered by the Buyer to the Escrow Agent for the holding purpose of escrow funds until securing the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end obligations of the Evaluation Period, Sellers under Section 2.6(f) and Article VIII hereof. Such amount (the Xxxxxxx Money Deposit "Escrow Fund") shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned held by the Escrow Agent pursuant to Purchaserthe terms of the Escrow Agreement. In the event the Closing occursThe Escrow Fund shall be held as a trust fund and shall not be subject to any lien, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Sellerattachment, trustee process or any other judicial process of any creditor of any party, and Purchaser shall receive a credit against be held and disbursed solely for the purposes and in accordance with the terms of the Escrow Agreement. At the U.S. Closing, $5,000,000 of the Purchase Price in otherwise payable by the amount Buyer to the Sellers shall be delivered by the Buyer to the Escrow Agent for the purpose of securing the obligation of the Xxxxxxx Money Deposit, Buyer to pay the Purchase Price for the France Assets at the France Closing and of the Sellers to proceed with the interestFrance Closing under Section 2.3(c) hereof. In all instancesOf such amount (the "BC France Escrow Fund"), Escrow Agent $3,900,000 shall not release evidence the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release portion of the Xxxxxxx Money Deposit, provided that, if Purchase Price attributable to the Closing occurs, the Xxxxxxx Money Deposit France Assets and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent $1,100,000 shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties represent additional Purchase Price payable with respect to the Xxxxxxx Money Deposit and remaining Acquired Assets which shall be held by the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent in order to insure the consummation of the France Closing. The BC France Escrow Fund shall not be bound to release and deliver held by the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will pursuant to the terms of the BC France Escrow Agreement. The BC France Escrow Fund shall be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) held as a trust fund and shall not be liable subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party, and shall be held and disbursed solely for any action taken, suffered or omitted by it the purposes and in accordance with the advice terms of such counsel.
the BC France Escrow Agreement. PAGE Transaction Taxes. Any and all federal, state, county, local or foreign sales, use, value added, excise, stamp, transfer, registration and other Taxes not in the nature of income taxes, fees and duties (c) Escrow Agent shall not be required including any interest, additions to defend any legal proceeding which may be instituted against it tax and penalties with respect to the Escrowed Fundsthereto) and any and all transfer, the Property registration, recording or the subject matter of this Agreement unless requested to do so by Purchaser or Seller similar fees and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered charges imposed in connection with the consummation of the transactions contemplated by this Agreement. Escrow Agent Agreement (collectively, "Transfer Taxes") shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed borne equally by the proper partiesBuyer, on the one hand, and the Sellers, jointly and severally, on the other hand.
Appears in 1 contract
Escrow. The Deposit and any other sums which the parties agree shall be held in escrow (herein collectively called the "Escrow Deposits"), together with all interest earned thereon, shall be held by the Escrow Agent, in trust, and disposed of only in accordance with the following provisions:
(a) The Escrow Agent will hold shall invest the Xxxxxxx Money Deposit Escrow Deposits in escrow in an government insured interest-bearing account of instruments satisfactory to both Buyer and Seller, shall not co-mingle the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance Deposits with any right hereunder. In the event Purchaser has not terminated this Agreement by the end funds of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaseror others, and shall promptly provide Buyer and Seller with confirmation of the investments made. In the event The parties acknowledge that only $100,000 will be federally insured.
(b) If the Closing occurs, the Xxxxxxx Money Deposit Escrow Agent shall deliver the Escrow Deposits to, or upon the instructions of, Seller on the Closing Date.
(c) If for any reason the Closing does not occur, the Escrow Agent shall deliver the Escrow Deposits and all interest accrued earned thereon will be released to SellerSeller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions of this Subsection 12.1(c). If for any reason the Closing does not occur and Purchaser either party makes a written demand upon the Escrow Agent for payment of the Escrow Deposits and the interest earned thereon, the Escrow Agent shall give written notice to the other party of such demand. If the Escrow Agent does not receive a credit against written objection from the Purchase Price in other party to the proposed payment within ten (10) days after the giving of such notice, the Escrow Agent is hereby authorized to make such payment. If the Escrow Agent does receive such written objection within such period, the Escrow Agent shall continue to hold such amount until otherwise directed by written instructions signed by Seller and Buyer or a final judgment of a court.
(d) The parties acknowledge that the Xxxxxxx Money DepositEscrow Agent is acting solely as a stakeholder at their request and for their convenience, with that the interest. In all instances, Escrow Agent shall not release be deemed to be the Xxxxxxx Money Deposit to agent of either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Depositparties, provided that, if and that the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party either of the parties for any act action or omission, except for bad omission on its part taken or made in good faith, gross negligence and not in disregard of this Agreement, but shall be liable for its negligent acts and for any loss, cost or willful misconduct, and expense incurred by Seller or Buyer resulting from the parties agree to Escrow Agent's mistake of law respecting the Escrow Agent's scope or nature of its duties. Buyer shall indemnify Escrow Agent and hold the Escrow Agent harmless from any and against and Seller shall reimburse Escrow Agent for all claimscosts, damagesclaims and expenses, losses or expenses arising including reasonable attorneys' fees, incurred in connection herewith. The parties acknowledge that with the performance of the Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties Agent's duties hereunder, except with respect to actions or omissions taken or made by the Xxxxxxx Money Escrow Agent in bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.
(e) Buyer shall be paid the interest earned on the Deposit and shall pay any income taxes on any interest earned on the Deposit. Buyer represents and warrants to the Escrow Agent that its taxpayer identification number is set forth next to its signature below.
(f) The Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Agent has received and shall hold the Escrow Deposits and the interest earned thereon (the "ESCROWED FUNDS")thereon, Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such depositescrow, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action takendisburse the Escrow Deposits, suffered or omitted by it in accordance with and the advice interest earned thereon, pursuant to the provisions of such counselthis Article 12.
(cg) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to The escrow fee, if any, charged by the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to Title Company in its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. capacity as Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder shared equally by Seller and believed by it to have been signed by the proper partiesBuyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Mack Cali Realty Corp)
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to PurchaserPurchaser except in certain limited circumstances expressly set forth elsewhere in this Agreement, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to and be for the party entitled to benefit of Purchaser unless the Xxxxxxx Money DepositDeposit is paid to Seller as liquidated damages pursuant to this Agreement. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Initial Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against all of the Purchase Price in the amount of interest earned on the Xxxxxxx Money Deposit, with the interest. In all other instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful breach or misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all other claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDSEscrowed Funds"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Cole Corporate Income Trust, Inc.)
Escrow. (a) At the Effective Time, Parent shall withhold the Escrow Agent will hold Cash from the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the ClosingClosing Cash Consideration payable, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by Merger Consideration Certificate, to the end Incentive Plan Representative (on behalf of the Evaluation PeriodIncentive Plan Participants), the Company Stockholder and Xxxxx Xxxxxxx Money Deposit shall be non-refundable & Co. (“Xxxxx Xxxxxxx”). For the purposes of this Section 2.03, the Incentive Plan Representative and the Company Stockholder are together referred to Purchaseras the “Escrow Participants.” Simultaneously with the execution and delivery of this Agreement, but shall be credited against Parent, the Purchase Price at the Closing. All interest earned Incentive Plan Representative (on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration behalf of the Evaluation Period, the Xxxxxxx Money Deposit Incentive Plan Participants) and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In shall enter into an escrow agreement (the event “Escrow Agreement”) which will provide the Closing occurs, the Xxxxxxx Money Deposit terms and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, conditions for the release of the Xxxxxxx Money DepositEscrow Cash, provided thatalong with any other amounts deposited with the Escrow Agent as security for the indemnification obligations of Article VIII pursuant to the terms of this Agreement (such amounts, if together with the Closing occursEscrow Cash, comprising the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on “Escrow Amount”), after the second anniversary of the Closing Date, subject to the terms of this Agreement and the Escrow Agreement. Purchaser represents that its tax identification numberOn the Closing Date, for purposes of reporting Parent shall cause the interest earnings, is 00-0000000Escrow Cash to be deposited with the Escrow Agent. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) The Escrow Agent shall not be liable hold the Escrow Amount as security for the indemnification rights under Article VIII and pursuant to any party for any act or omissionthe terms of that certain letter agreement dated as of October 30, except for bad faith2009 between Xxxxx Xxxxxxx and NetStreams, gross negligence or willful misconductL.L.C. (the “Xxxxx Xxxxxxx Agreement”), amending that certain engagement letter between Xxxxx Xxxxxxx and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claimsNetStreams, damagesL.L.C. dated February 2, losses or expenses arising in connection herewith2009. The parties acknowledge that intend that, for tax purposes, the Escrow Agent is acting solely Cash shall qualify for installment sale treatment under §453 of the Code. A portion of the Escrow Cash will be treated as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect imputed interest to the Xxxxxxx Money Deposit and extent required under the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselCode.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. This Agreement shall be effective at all times during the term ------ of the Loan whether or not there are Escrow Funds held by PNC Bank hereunder. It is intended that Borrower will deposit: (a) Escrow Agent will hold all disbursements from the Xxxxxxx Money Deposit Lockbox Account (as defined in escrow in an interest-bearing account the Security Agreement and Lockbox Agreement executed by Borrower contemporaneously herewith); and (b) all proceeds from any draw of the type generally used Letter of Credit (as defined in the Security Agreement for Letter of Credit executed by Escrow Agent Borrower contemporaneously herewith); with PNC Bank to provide for the holding payment of escrow funds until the earlier of (i) the Closingfuture customary and reasonable third party tenant improvement costs and expenses actually incurred by Borrower and customary and reasonable leasing commissions paid to an Independent Leasing Agent, or (ii) the termination of this Agreement all in accordance connection with any right hereunderRenewal Lease (the "Leasing ------- Matters"). In the event Purchaser has An "Independent Leasing Agent" is a management or brokerage ------- ------------------------- company or other entity not terminated this Agreement owned or controlled, directly or indirectly, by the end of the Evaluation PeriodBorrower; provided, the Xxxxxxx Money Deposit shall be non-refundable to Purchaserhowever, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement that Hannay Investment Xxxxxxxxes is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow deemed an Independent Leasing Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting receiving up to a 2% commission on a Renewal Lease. A "Renewal Lease" ------------- is any lease that is a renewal of or a replacement for any or all of the interest earningsProperty that was included in the lease of Blackboard Campuswide, is 00-0000000Inc. in effect as of the closing of the Loan or at any time thereafter (the "Blackboard Campuswide Space"). Seller represents Each Renewal Lease must be: (a) --------------------------- for any lease of 3,500 square feet or more, with a tenant approved by PNC Bank in its reasonable discretion, which approval shall not be unreasonably withheld or delayed (PNC Bank agreeing that it shall be deemed to have approved a tenant if it has not responded to Borrower's request for such approval within 15 days after its tax identification number, receipt of Borrower's request for purposes of reporting the interest earnings, is 00-0000000.
such approval); (b) Escrow Agent shall for a term long enxxxx xx not cause the average lease term of all leases affecting the Property to be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, less than three (3) years; and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to contain terms such that the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility then applicable debt service coverage ratio for the genuineness Loan, as determined by PNC Bank in its sole discretion, equals or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given exceeds 1.3x to it hereunder and believed by it to have been signed by the proper parties1.
Appears in 1 contract
Escrow. (a) 13.1. The parties hereto have mutually requested that the Escrow Agent will hold act as escrow agent for the purpose of holding the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunderthe terms of this Agreement.
13.2. In the event Purchaser has not terminated this Agreement The Xxxxxxx Money shall be deposited by the end of the Evaluation Period, the Escrow Agent in an interest bearing account approved by Purchaser.
13.3. The Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid released or delivered to the party entitled thereto pursuant to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by with reasonable promptness after the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, shall have received notice from Seller and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the authorizing release of the Xxxxxxx Money Depositor the occurrence of the Closing, provided that, if the Closing occurs, at which time the Xxxxxxx Money Deposit shall be paid to Seller and interest thereon will applied to the Purchase Price.
(a) The Escrow Agent is to be applied considered as set forth above a depository only, shall not be deemed to be a party to any document other than this Agreement, and shall not be responsible or liable in any manner whatsoever for the sufficiency, manner of execution, or validity of any written instructions, certificates or any other documents received by it, nor as to the identity, authority or rights of any persons executing the same. The Escrow Agent shall be entitled to rely at all times on instructions given by Seller and/or Purchaser, as the Closing Date. Purchaser represents that its tax identification numbercase may be and as required hereunder, for purposes without any necessity of reporting verifying the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000authority therefor.
(b) The Escrow Agent shall not at any time be held liable for actions taken or omitted to be taken in good faith and without negligence. Seller and Purchaser agree to save and hold the Escrow Agent harmless and indemnify the Escrow Agent from any party for loss and from any act claims or omission, except for bad faith, gross demands arising out of its actions hereunder other than any claims or demands arising from the Escrow Agent's negligence or willful misconduct.
(c) It is further understood by Seller and Purchaser that if, as a result of any disagreement between them or adverse demands and claims being made by any of them upon the parties Escrow Agent, or if the Escrow Agent otherwise shall become involved in litigation with respect to this Agreement, the Escrow Agent may deposit the Xxxxxxx Money with a court of competent jurisdiction and/or in accordance with the order of a court of competent jurisdiction and in any such event, Seller and Purchaser agree that they, jointly and severally, are and shall be liable to indemnify the Escrow Agent and hold shall reimburse the Escrow Agent harmless from on demand for all costs, expenses and reasonable counsel fees it shall incur or be compelled to pay by reason of any such litigation. Seller and Purchaser agree between themselves that each shall be responsible to advance one-half of all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that amounts due the Escrow Agent is acting solely pursuant to this Section 13.4, provided that any such advance by Seller or Purchaser as stakeholder for their mutual convenience. a result of any dispute or litigation between them shall be without prejudice to its right to recover such amount as damages from the breaching party.
(d) In taking or omitting to take any action whatsoever hereunder, the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound protected in relying upon any notice, paper, or other document believed by it to release be genuine, or upon evidence deemed by it to be sufficient, and deliver in no event shall the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunderliable hereunder for any act performed or omitted to be performed by it hereunder in the absence of negligence or bad faith. The Escrow Agent shall have the right to may consult with separate counsel of in connection with its own choosing (if it deems such consultation advisable) duties hereunder and shall not be liable for fully protected in any action act taken, suffered or omitted permitted by it in good faith and without negligence in accordance with the advice of such counsel.
(c) 13.5. Upon the satisfaction of the mutual obligations of the parties hereunder, the Escrow Agent shall not be required promptly submit for recording or filing, as applicable, all appropriate instruments delivered to defend it at the Closing.
13.6. The Escrow Agent shall have no right or obligation to approve any legal proceeding which may be instituted against it with respect amendment to this Agreement unless such amendment purports to affect the Escrowed FundsEscrow Agent's rights or obligations hereunder.
13.7. The Escrow Agent hereby agrees to serve as the "real estate reporting person" (as such term is defined in Section 6045(e) of the Code). This Agreement shall constitute a designation agreement, the Property or name and address of the subject matter transferor and transferee of the transaction contemplated hereby as well as the name and address of the Escrow Agent appear in Section 14.1 hereof, and Seller, Purchaser and the Escrow Agent agree to retain a copy of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against for a period of four years following the cost and expense end of such defensethe calendar year in which the Closing occurs. Escrow Agent The provisions of this Section shall not be required to institute legal proceedings of any kind and shall have no responsibility for survive the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesClosing.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Resource Real Estate Opportunity REIT, Inc.)
Escrow. (aA) The obligations of Seller pursuant to Section 8.2 (the “Seller’s Indemnification”) shall be secured by deposit of the GPS Shares with a third party reasonably acceptable to Seller (“Escrow Agent”) for a period of twenty-five months from the Closing Date, it being understood that such deposit shall constitute a grant of a first priority security interest in the GPS Shares in favor of Buyer to secure the Seller’s Indemnification and that the Escrow Agent will hold is acting as the Xxxxxxx Money Deposit agent of Buyer solely for purposes of perfecting such security interest. Such security interest shall automatically terminate with respect to any GPS Shares released from escrow upon the release of those Shares and Buyer shall promptly execute all such documents reasonably requested by Seller in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of order to evidence such termination.
(iB) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser that the amount of a Loss under Section 8.2 has not terminated this Agreement by been finally determined (the end of “Offset Amount”), Buyer shall have the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable right to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by request the Escrow Agent to Purchaserdeliver to Buyer such portion of the GPS Shares, valued for this purpose at $0.12 per share, as necessary to cover such Offset Amount, it being agreed that such remedy is reasonable under the applicable provisions of the Uniform Commercial Code. In Buyer shall simultaneously send written notice of the event release request to the Closing occursEscrow Agent and to Seller. Seller shall have 15 Business Days in which to send to the Escrow Agent its written objection to the release of the applicable GPS Shares. If Seller sends such written objection to the Escrow Agent within 15 Business Days, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit applicable GPS Shares to either party Buyer unless and until the Escrow Agent has been requested receives (a) a written notice executed by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, by Buyer authorizing the release of the Xxxxxxx Money DepositGPS Shares to Buyer, provided that, if or (b) a court order. In the Closing occursabsence of a timely objection, the Xxxxxxx Money Deposit Escrow Agent shall deliver the applicable Shares to Buyer.
(C) In determining the number of Target Shares subject to the Repurchase Right, the percentage shall apply to and interest thereon will be applied as set forth above based on the Closing Date. Purchaser represents that its tax identification numbernumber of GPS Shares remaining after any disposition pursuant to this Section.
(D) Notwithstanding anything herein to the contrary, for purposes of reporting determining the interest earningsnumber of GPS Shares necessary to cover the Offset Amount, is 00-0000000. Seller represents that its tax identification number, for purposes the number of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent Shares shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect equal to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed Offset Amount divided by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel$.12.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. Upon Seller’s execution of this Agreement, Seller shall establish an escrow for the sale of the Property to Purchaser (the “Escrow”) at the office of Orange Coast Title Company, whose office is located at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000 (the “Escrow Agent”) attention Ms. Xxxxx Genders, whose contact numbers are (a) telephone — 000-000-0000; (b) facsimile — 000-000-0000. If the Escrow Agent will hold the Xxxxxxx Money Deposit in is unwilling or unable to perform, Seller shall designate another escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of agent. Upon (i) the ClosingGrant Deed being submitted for recordation by the Escrow Agent and/or Title Company, or and (ii) the termination Purchase Price (including the Deposit) being confirmed as having been received by Seller via wire transfer, the occurrence of this Agreement in accordance with any right hereundersaid events shall be defined as being the “Close of Escrow”, and the Escrow Agent and Title Company shall perform all other tasks required of them as a result of the Close of Escrow. In Unless Seller shall otherwise expressly provide to the event Purchaser has not terminated this Agreement by contrary through a subsequent writing which Seller shall deliver to both the Escrow Agent and Purchaser, the Close of Escrow shall occur on the Business Day that is five (5) days after the end of the Evaluation PeriodDue Diligence Period (said date being defined as, the Xxxxxxx Money “Closing Deadline”). Should Escrow not Close by the Closing Deadline due to Purchaser’s default or inactions, then in that event Seller alone shall have the option to either (x) extend the Escrow for such period of time as is necessary to perfect the Close, or (y) terminate the Escrow and, so long as Seller is not then in default under this Agreement, pursuant to a writing that Purchaser shall have theretofore delivered to both the Escrow Agent and Seller advising of such Seller’s default, in which event the Deposit shall be non-refundable deemed to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it Liquidated Damages in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter provisions set out in Section 5 of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (TNP Strategic Retail Trust, Inc.)
Escrow. (a) At Closing, Buyer shall withhold from the Cash Consideration and furnish to Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account Sellers’ Contribution to Escrow. The Sellers’ Contribution to Escrow shall be contributed by the Sellers of each of the type generally used Companies in the percentages set forth on the Schedule of Sellers attached hereto. The Escrow Account shall consist of two separate subaccounts: (1) a subaccount in the amount of the Base Escrow, consisting of Sellers’ Contribution to the Base Escrow under this Agreement, and including a contribution from the sellers under the Nx.Xxx SPA), all of which is available to satisfy indemnification amounts owed by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination Sellers and Seller Principals to Buyer Indemnified Parties under Section 9 of this Agreement and Section 9 of the Nx.Xxx SPA, and (2) the Tax Escrow in the amount of US$ [***], consisting of US$ [***] as Sellers’ contribution to the Tax Escrow under this Agreement, and including US$ [***] as a contribution from sellers under the Nx.Xxx SPA, available to satisfy indemnification amounts owed by the Sellers and Seller Principals to Buyer Indemnified Parties under Section 9.02(d) and 9.02(e) of this Agreement (claims relating to Taxes, including Known Tax Obligations), each of which will be held and disbursed in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end terms of the Evaluation Period, Escrow Agreement in substantially the Xxxxxxx Money Deposit shall be non-refundable form attached hereto (subject to Purchaser, but shall be credited against the Purchase Price at approval of the Closing. All interest earned on the Xxxxxxx Money Deposit Escrow Agent) as Exhibit C. The Escrow Agent Fee shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit 50% by Buyer and all interest accrued thereon will be returned 50% by the Escrow Agent to Purchaser. Sellers as provided in Section 2.08.
(b) In the event the Closing occurshas not occurred by [***], then the Xxxxxxx Money Deposit and all interest accrued thereon will Tax Escrow may be released to Sellerincreased, and Purchaser shall receive a credit against the Purchase Price Sellers’ Contribution to Escrow under this Agreement may be increased, in the amount recommended by Buyer’s third party tax advisors EisnerAmper, to take into account potential tax liability of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, Companies for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000calendar year 2019.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. (a) Escrow Agent will hold Level 8 may deposit the Xxxxxxx Money Deposit source code relating to the PCA Shell and Distributed Computing Substrate in a source code escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding benefit of channel partners and end users pursuant to the terms of a source code escrow funds until agreement ("Level 8 Source Code Escrow Agreement"). The Level 8 Source Code Escrow Agreement shall state that in the earlier event that Level 8 becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated its business voluntarily or otherwise, prior to the release of source code to an end user and/or reseller, the following procedure shall occur:
a. Level 8 will provide Merrill Lynch with a list of all end users and resellers who have souxxx xxxe xxxxow rights;
b. Merrill Lynch will decide whether or not they want to assume Levxx 0'x xxxxxaxxxx to provide Maintenance Services to each of its end users and resellers;
c. In the event that Merrill Lynch determines that it will assume Level 8's obligation to xxxxxxx Xxxxxenance Services to each of Level 8's end users and/or resellers, and
(i) said end users and/or resellers accept Merrill Lynch as the Closingprovider of said Maintenance Services, or Level 8 sxxxx xxsxxx xts Maintenance Service obligations to Merrill Lynch, in lieu of having the source code released directly to xxx xxd xxxxs and resellers (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and Merrill Lynch shall not be liable for any action takenset-offs or claims which saxx xxx uxxxx and/or resellers may assert against Level 8), suffered or omitted by it in accordance with the advice of such counsel.or
(cii) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to said end users and/or resellers reject Merrill Lynch as the Escrowed Fundsprovider of said Maintenance Services, the Property or end uxxxx xxd xxxxllers shall each pay Merrill Lynch a one time, lump sum payment of One Million Dollars ($1,000,000) xx secure the subject matter release of this Agreement unless requested the source code under the terms of the Level 8 Source Code Escrow Agreement; and
d. In the event that Merrill Lynch decides not to do so by Purchaser or Seller and is indemnified assume Level 8's obligation to provide Mxxxxxxxnxx Xxrvices to its satisfaction against end users or resellers, then the cost source code will be delivered to said end users and expense resellers based on the terms of such defense. the Level 8 Source Code Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties."
Appears in 1 contract
Escrow. At the Effective Time, ten percent (a10%) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end sum of the Evaluation PeriodMerger Shares and Stock Options (collectively, the Xxxxxxx Money "Escrow Deposit") shall be delivered to the Escrow Agent, to be held for a period ending on the Escrow Release Date, except the Escrow Deposit may be withheld after the Escrow Release Date to satisfy claims for indemnification which are the subject to a Claims Notice delivered prior to the Escrow Release Date. The Escrow Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit held and all interest accrued thereon will be returned disbursed by the Escrow Agent in accordance with an Escrow Agreement in the form attached hereto as Exhibit C. For the purpose of any claim against the Escrow Deposit hereunder, the value per share of the Escrow Deposit shall be deemed to Purchaser. In the event be the Closing occursMarket Price (less the exercise price therefore with respect to the Stock Options). Except with respect to claims based on fraud committed by the Company or the Equityholders, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall which are not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided thatlimited, if the Closing occurs, Parent agrees that Parent's sole and exclusive remedy and recourse against the Xxxxxxx Money Deposit Equityholders under this Agreement for Losses attributable to any inaccuracy or breach of any representation or warranty of the Company or the Equityholders which is contained in this Agreement or the Letter of Transmittal or any Schedule or certificate delivered pursuant hereto or thereto other than Losses arising under Section 13.5 and interest thereon will be applied as from breaches of the representations and warranties set forth above on the Closing Date. Purchaser represents that its tax identification numberin Sections 3.4, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, 3.9 and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon 3.11 (the "ESCROWED FUNDSCovered Representations") shall be against the Escrow Deposit held in escrow pursuant to the Escrow Agreement. Notwithstanding anything herein to the contrary, except as provided under Section 13.5 and in the next sentences, (i) the Equityholders shall have no liability for indemnification pursuant to this Article XII until the aggregate Losses to the Parent and the Company exceed $25,000 (the "Basket"), Escrow Agent at which point the Equityholders shall not be bound to release liable for the full amount of all Losses, and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with maximum aggregate liability of the clerk Equityholders hereunder shall not exceed the value (determined by reference to the Closing Market Price) of the Escrow Deposit (the "Maximum Indemnification"). With respect to indemnification claims arising under Section 12.1(i) from any inaccuracy in or breach of any court of competent jurisdiction. Upon such depositCovered Representations, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing or for Sections 12.1(ii), (if it deems such consultation advisableiii) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(civ) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against Article XII, neither the cost and expense of such defense. Escrow Agent Basket nor the Maximum Indemnification limitation shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesapply.
Appears in 1 contract
Samples: Merger Agreement (Go2net Inc)
Escrow. (a) Escrow Agent will hold The parties hereto agree that [Israeli escrow agent agreed to by Company to be inserted upon Effective Date] shall act as escrow agent in connection with the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent Source Code for the holding purposes set forth herein ("Escrow Agent"). Within ten (10) Business Days after the Effective Date the parties will enter into an escrow agreement acceptable to Company (including without limitation sufficient levels of escrow funds until the earlier of (iverification) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, strict compliance with the interestterms hereof and governed by Israeli Law ("Escrow Agreement"). In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party Within five (5) Business Days to disputedays after the Acceptance of the System or any part thereof, or consent toContractor shall deposit into escrow with the Escrow Agent, under the terms of this Agreement and the Escrow Agreement, the Source Code, in such media as acceptable to Company, and shall update such Source Code to include all modifications, improvements, updates and upgrades thereto and to bring it current - upon each Change Request, Acceptance and new release but in any event not less than once per calendar quarter. Upon a Release Event (as hereinafter defined) Company and its designees shall obtain and Contractor hereby grants a perpetual, irrevocable, nonexclusive, nontransferable fully paid, royalty free license, with the right to sublicense (solely to contractors acting on behalf of Company), to use, modify, enhance and develop the Source Code as required to continue to enjoy its rights under this Agreement in respect of the Xxxxxxx Money DepositSystem, provided thatincluding for the purpose of the continued receipt of the Support Services. Release Event: (a) Contractor materially breaches it obligations under this Agreement and such breach is not remedied within (30) days after written notice thereof from Company; (b) Contractor materially fails to provide Support Services under the terms hereof and such failure is not remedied within twenty (20) days after written notice thereof from Company; (c) Contractor (and/or its licensor) becomes the subject of any Bankruptcy Event. All escrow related fees shall be borne by Contractor. Any dispute regarding the occurrence of a Release Event shall be determined solely by the Board of Directors of Company. Provided that Contractor so notifies Company in writing, if within five 5 days after the Closing occursEffective Date, Contractor shall deposit the Xxxxxxx Money Deposit and interest thereon will be applied Source Code with Company, in lieu of the deposit with the Escrow Agent as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconductin this Section 14.4, and the parties agree same terms and conditions set forth above shall apply in respect thereof, including in respect of the applicable media, updates, rights granted to indemnify Escrow Agent Company and hold Escrow Agent harmless from Release Event and further provided that Company or any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In third party on its behalf may conduct verification of the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselSource Code at levels at Company's sole discretion.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. On the date hereof, and in exchange for Seller’s covenant to cooperate in all material respects with Purchaser to permit Purchaser to conduct those activities listed on Schedule 2.1(b) prior to the Closing Date, the Purchaser shall deposit One Million Dollars (a$1,000,000.00) (the “Escrow Agent will hold the Xxxxxxx Money Deposit in Amount”) into an escrow in an interest-bearing account of the type generally used by with Truist Bank, as escrow agent (“Escrow Agent for the holding of escrow funds until the earlier of (i) the ClosingAgent”), or (ii) the termination of this Agreement in accordance with any right hereunderthe terms and conditions of the escrow agreement entered into as of the date hereof by and among Purchaser, the Seller, the Majority Shareholders and Escrow Agent, attached hereto as Exhibit 2.1(b) (the “Escrow Agreement”). In If the event Purchaser Seller terminates this Agreement pursuant to Section 9.3(c) below, or if the conditions set forth in Section 9.1 hereof have been satisfied or validly waived but the Closing has not terminated this Agreement by occurred pursuant to Section 2.3 hereof Purchaser and the end of the Evaluation Period, the Xxxxxxx Money Deposit Seller shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by cause the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit Escrow Amount to either party until Escrow Agent has been requested by the Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party within five (5) Business Days to disputefollowing the date of such termination or event, or consent to, as the release of the Xxxxxxx Money Deposit, provided that, if case may be. If the Closing occurs, the Xxxxxxx Money Deposit Escrow Amount shall be utilized as a source of funds to satisfy the Seller’s obligations under Section 3.10 and interest thereon will be applied as any indemnification obligations set forth above in Article 6 of this Agreement as more fully described in Section 6.5 hereof. The Escrow Agreement shall provide that, on or prior to the date that is five (5) Business Days following the one (1) year anniversary of the Closing Date (the “Escrow Release Date”), Purchaser and the Seller shall cause the Escrow Agent to release any then remaining portion of the Escrow Amount to the Seller, less a portion of the Escrow Amount equal to the estimated Losses arising out of any then pending indemnification claims by Purchaser that are subject to Notices of Claim. Any portion of the Escrow Amount due to be released on the Closing Date. Purchaser represents Escrow Release Date that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not continues to be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising held in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties escrow with respect to any unresolved Notice of Claim shall be delivered to the Xxxxxxx Money Deposit and the interest earned thereon Seller, or Purchaser, as applicable, within five (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i5) continue to hold the Escrowed Funds until otherwise directed in Business Days following a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice Final Determination of such counsel.
Notice of Claim. (c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.)
Appears in 1 contract
Escrow. (a) The funds held in the Escrow Account shall serve as security for Sellers’ indemnification obligations hereunder and shall be released upon the Escrow Agent’s receipt of joint written instructions from the Buyer and the Seller Representative, or as otherwise provided under the terms of the Escrow Agreement. On the one-year anniversary of the Closing Date, the Seller Representative and the Buyer shall issue joint written instructions to the Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by instructing the Escrow Agent to Purchaser. In release all funds in the event Escrow Account in excess of the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in sum of the amount of actual Losses alleged in good faith in any unresolved claim for indemnification, to the Xxxxxxx Money DepositCompany, with as disbursing agent for the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent toOptionholders, the release Warrantholder, and the Seller Representative as disbursing agent for the Sellers, in proportion to the amounts in which the Sellers, the Company on behalf of the Xxxxxxx Money Deposit, provided that, if Optionholders and the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above Warrantholder received funds on the Closing Date. Purchaser represents that its tax identification numberIf there are any remaining claims for indemnification, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting Representative and the interest earnings, is 00-0000000.
(b) Buyer shall issue joint written instructions to the Escrow Agent to release any remaining funds in the Escrow Account when such claims are resolved, which funds shall not be liable released to any party the Company, as disbursing agent for any act or omissionthe Optionholders, except for bad faith, gross negligence or willful misconductthe Warrantholder, and the parties agree Seller Representative as disbursing agent for the Sellers, in proportion to indemnify the amounts in which the Sellers, the Company on behalf of the Optionholders and the Warrantholder received funds on the Closing Date. The Company shall disburse any amounts it receives from the Escrow Agent and hold Escrow Agent harmless from any and all claimsin its capacity as disbursing agent for the Optionholders, damagesincluding earnings on the escrowed funds, losses or expenses arising to such Optionholders in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon percentages set forth on Schedule 1.3(c)(as such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which schedule may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesupdated at Closing).
Appears in 1 contract
Escrow. (a) From the amount paid to Xx. Xxxx pursuant to Paragraph 2 of this Agreement, Xx. Xxxx shall place $800,000 into escrow pursuant to the terms of the Escrow Agent will hold the Xxxxxxx Money Deposit Agreement. The amount held in escrow in an interest-bearing account of pursuant to this Agreement and the type generally used Escrow Agreement, as increased by Escrow Agent for applicable interest or other earnings thereon or as decreased by distributions made pursuant to the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination terms of this Agreement in accordance with any right hereunder. In Paragraph 3 and the event Purchaser has not terminated this Agreement by the end of the Evaluation PeriodEscrow Agreement, the Xxxxxxx Money Deposit shall be non-refundable referred to Purchaser, but herein as the "Escrow Amount." The Escrow Amount shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned held in escrow by the Escrow Agent pursuant to Purchaserthe terms of the Escrow Agreement and shall be distributed only to Xx. In Xxxx or appropriate taxing authorities having the event authority to collect income or payroll taxes from or relating to Xx. Xxxx ("Taxing Authorities"), pursuant to the Closing occursterms of this Paragraph 3 and the Escrow Agreement. For avoidance of doubt, the Xxxxxxx Money Deposit and all Penton shall have no ownership interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount Escrow Amount and shall not seek to, nor be entitled to, assert or pursue any claim to or against or any recovery from all or any portion of the Xxxxxxx Money DepositEscrow Amount, whether with respect amounts asserted to be owed to Penton by Xx. Xxxx or otherwise, other than to distribute such funds to the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000applicable Taxing Authorities.
(b) If at any time there is an Excess Escrow Amount, Xx. Xxxx will be entitled to require Penton to cause an amount of up to the Excess Escrow Amount to be distributed to Xx. Xxxx by the Escrow Agent and, if Penton agrees, in its reasonable judgment, that there is an Excess Escrow Amount, Penton shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and cause the parties agree to indemnify Escrow Agent and hold to distribute such Excess Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewithAmount to Xx. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselXxxx.
(c) If at any time any amount of indebtedness is discharged under the Note, upon proper evidence of such discharge being presented to the Escrow Agent, Penton may cause the Escrow Agent to distribute an amount equal to any withholding payments that Penton determines in its reasonable judgment that it is required to remit to all Taxing Authorities (based on the minimum applicable withholding rate required by law) with respect to such discharge from the Escrow Amount for the account of Xx. Xxxx to such appropriate Taxing Authorities; provided, however, that if such discharge is a direct result of an action by Penton, Penton will give Xx. Xxxx notice of such action at least five business days prior to taking such action. Notwithstanding any other provision of this Agreement or the Note, except as provided in Paragraph 5 hereof, Penton will not, without Xx. Xxxx'x written consent, take an action that would directly result in discharge of indebtedness under the Note on or prior to December 31, 2005. If, at Penton's request, any amount is distributed by the Escrow Agent under the Escrow Agreement to any Taxing Authority for purposes of meeting Penton's withholding obligation related to a discharge of indebtedness under the Note, and an appropriate amount of indebtedness has not theretofore been discharged under the Note, an appropriate amount of indebtedness related to such distribution shall not be deemed to have been discharged, and neither Xx. Xxxx nor his estate will be required to defend make any legal proceeding which may be instituted against it future payments with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense amount of such defensedischarge.
(d) On August 31, 2007, Penton shall cause the then-remaining Escrow Amount to be distributed to Xx. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed Xxxx by the proper partiesEscrow Agent.
Appears in 1 contract
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event that prior to the expiration of the Evaluation Period, Purchaser has not terminated elects to waive its right to allow this Agreement by to automatically terminate at the end of the Evaluation PeriodPeriod as set forth in Section 5.3(c), the Xxxxxxx Money Deposit shall be non-refundable to PurchaserPurchaser except in certain limited circumstances expressly set forth elsewhere in this Agreement, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to and be for the party entitled to benefit of Purchaser unless the Xxxxxxx Money DepositDeposit is paid to Seller as liquidated damages pursuant to this Agreement. In the event this Agreement is terminated prior allowed by Purchaser to automatically terminate at the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser, without Seller having any right to dispute such return. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against all of the Purchase Price in the amount of interest earned on the Xxxxxxx Money Deposit, with the interest. In all other instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful breach or misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all other claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDSEscrowed Funds"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility collectability of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Griffin Capital Essential Asset REIT II, Inc.)
Escrow. (a) Escrow Agent will hold On the Xxxxxxx Money Deposit in escrow in an interest-bearing account Closing Date and pursuant to the terms of the type generally used by escrow agreement in the form of Exhibit E (the “Escrow Agent for the holding of escrow funds until the earlier of Agreement”), Parent will withhold (i) the ClosingEscrow Cash, or and (ii) the termination of this Agreement Escrow Stock (the Escrow Cash and the Escrow Stock being collectively referred to as the “Escrow Amount”), and deposit the Escrow Amount into an escrow account (the “Escrow Account”) to be held in trust by Deutsche Bank National Trust Company (the “Escrow Agent” and also the “Exchange Agent”) . The Escrow Amount then remaining in the Escrow Account will be released from the Escrow Account in accordance with the terms of the Escrow Agreement. The Escrow Amount will be available as a source of funding to the Indemnified Parties for any right hereunderLosses for which they are entitled to be indemnified pursuant to Article 6. In Pursuant to the event Purchaser has not terminated Escrow Agreement:
(a) The shares of Escrow Stock will be issued to, and registered in, book entry form pursuant to a restricted CUSIP number in an account in the name of each Stockholder in proportion to each Stockholder’s Pro Rata Share, and for all purposes under this Agreement by and the end Escrow Agreement each share of the Evaluation Period, the Xxxxxxx Money Deposit Escrow Stock shall be non-refundable deemed to Purchaser, but have a value equal to the Parent Share Price. Each Stockholder shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Periodvote his, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price her or its shares in the amount of escrow while such shares are in the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000escrow.
(b) Any recovery by Parent of Losses from the Escrow Agent Amount shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, made from the Escrow Stock and Escrow Cash in the same proportion that the Escrow Stock and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect Cash respectively bear to the Xxxxxxx Money Deposit and Escrow Amount (with each share of Escrow Stock being deemed to have a value equal to the interest earned thereon (the "ESCROWED FUNDS"Parent Share Price), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) On the date that is twelve (12) months after the Closing Date (or, if such date is not a Business Day, then the first Business Day thereafter) (the “Escrow Release Date”), the Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect release to the Escrowed FundsExchange Agent for distribution to the Stockholders, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with their respective Pro Rata Shares, the Escrow Funds (as such term is defined in the Escrow Agreement) minus (A) any written instructions given Pending Claims Amount (as such term is defined in the Escrow Agreement) as of the Claim Termination Date, minus (B) the aggregate Claimed Escrow Amounts (as such term is defined in the Escrow Agreement) paid to it hereunder Parent, on behalf of any Indemnified Party, pursuant to this Agreement and believed by it the Escrow Agreement through the Claim Termination Date, and minus (C) the aggregate outstanding Claimed Escrow Amounts set forth in any Claim Certificates, which have not been paid to have been signed Parent, or contested by the proper partiesStockholder Representative pursuant to the terms of the Escrow Agreement, as of the Claim Termination Date; plus (D) the Escrow Earnings (as such term is defined in the Escrow Agreement).
Appears in 1 contract
Samples: Merger Agreement (Shutterfly Inc)
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money The Deposit shall be held in escrow in an interest-interest bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunderdelivered as herein provided. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All Any interest earned on the Xxxxxxx Money Deposit shall be paid to whichever party is entitled thereto. Such interest shall not be credited against the party entitled Aggregate Price. The Deposit shall be held and disbursed by Escrow Agent in the following manner:
(i) to Seller at the Xxxxxxx Money Deposit. In Closing Date upon consummation of the event closing; or
(ii) to Seller upon receipt of written demand therefor, stating that Purchaser has defaulted in the performance of Purchaser's obligations under this Agreement is terminated prior to and the expiration of the Evaluation Periodfacts and circumstances underlying such default; provided, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurshowever, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, that Escrow Agent shall not release the Xxxxxxx Money Deposit to either party honor such demand until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party at least five (5) Business Days days after it has sent a copy of such demand to disputePurchaser, 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 1.4; or
(iii) to Purchaser upon receipt of written demand therefor, stating that either (x) this Agreement has been terminated and certifying the basis for such termination, or consent to(y) Seller has defaulted in performance of Seller's obligations and the facts and circumstances underlying such default or that Purchaser is otherwise entitled to the Deposit under the provisions of this Agreement; provided, however, that Escrow Agent shall not honor such demand until at least five (5) days after it has sent a copy of such demand to Seller, nor thereafter if Escrow Agent shall have received written notice of objection from Seller in accordance with the release provisions of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes clause (b) of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000this SECTION 1.4.
(b) Upon receipt of written demand for the Deposit by Purchaser or Seller pursuant to clause (ii) or (iii) of SECTION 1.4(A), Escrow Agent shall not be liable promptly send a copy thereof to any the other party. The other party for any act or omission, except for bad faith, gross negligence or willful misconduct, and shall have the parties agree right to indemnify object to the delivery of the Deposit by sending written notice of such objection to Escrow Agent and hold within five (5) days after Escrow Agent harmless from sends a copy of the written demand to the objecting party but not thereafter. Such notice shall set forth the basis for objecting to the delivery of the Deposit. Upon receipt of such notice, Escrow Agent shall promptly send a copy thereof to the party who made the written demand.
(c) In the event of any dispute between the parties, Escrow Agent, at its option, may disregard all instructions received and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that may hold the Deposit until the dispute is mutually resolved and Escrow Agent is acting solely as stakeholder for their mutual convenience. advised of this fact in writing by both Seller and Purchaser, or Escrow Agent is otherwise instructed by a final judgment of a court of competent jurisdiction.
(d) In the event Escrow Agent receives written notice of a dispute between 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 respect to any of the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS")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 bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until instructed otherwise directed in a writing signed by all parties hereto both Seller and Purchaser, or (ii) deposit the Escrowed Funds with the clerk by final judgment of any a court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(ce) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Fundsrely upon, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with or refraining from acting upon, any written instructions given notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties, provided that any modification of this Agreement shall be signed by Escrow Agent, Purchaser and Seller.
(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 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 prior to such resignation a substitute escrow agent is approved in writing by Seller and Purchaser, which approval shall not be unreasonably withheld or delayed. After such resignation, Escrow Agent shall have no further duties or liability hereunder.
(h) Purchaser and Seller, together, shall have the right to terminate the appointment of Escrow Agent hereunder by giving to it notice of such termination, specifying the date upon which such termination shall take effect and designating a replacement escrow agent, who shall sign a counterpart of this Agreement. Upon demand of such successor escrow agent, the Deposit shall be turned over and delivered to such successor escrow agent, who shall thereupon be bound by all of the provisions hereof.
(i) Seller and Purchaser shall be jointly and severally responsible for the reimbursement to Escrow Agent of all expenses, disbursements and advances (including reasonable attorneys' fees) incurred or made by Escrow Agent in connection with the carrying out of its duties hereunder.
(j) Escrow Agent's agreements and obligations hereunder shall terminate and Escrow Agent shall be discharged from further duties and obligations hereunder upon final payment of the Deposit in accordance with the terms of this Agreement.
Appears in 1 contract
Escrow. (a) 12.1. The parties hereto have mutually requested that the Escrow Agent will hold act as escrow agent for the purpose of holding the Xxxxxxx Money Deposit in escrow in an interest-bearing account accordance with the terms of this Agreement. The Xxxxxxx Money shall be held by the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (y) the Closing, or (z) such time as Seller or Purchaser may be entitled to the Xxxxxxx Money in accordance with this Agreement, at which time the Escrow Agent shall remit the Xxxxxxx Money to the party entitled thereto in accordance with this Agreement.
12.2. The Xxxxxxx Money shall be deposited by the Escrow Agent in an interest bearing account with First-Citizens Bank and Trust Company of South Carolina.
12.3. The Xxxxxxx Money shall be released or delivered to the party entitled thereto pursuant to this Agreement with reasonable promptness after the Escrow Agent shall have received notice:
(a) from Seller and Purchaser authorizing release of the Xxxxxxx Money; or
(b) from Seller authorizing the return of the Xxxxxxx Money to Purchaser; or
(c) of the occurrence of either of the following events:
(i) the Closing, or at which time the Xxxxxxx Money shall be paid to Seller and applied to the Purchase Price; or
(ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned receipt by the Escrow Agent of a written notice from either Seller or Purchaser stating that an event has occurred under this Agreement entitling the party delivering such notice to Purchaser. In the event Xxxxxxx Money, whereupon the Closing occursEscrow Agent shall deliver written notice (the "Default Notice") thereof to the other party and, unless such other party shall have delivered a written notice of objection to the Escrow Agent within ten (10) days following receipt by such other party of the Default Notice, the Escrow Agent shall deliver the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Sellerthe party initially requesting the Xxxxxxx Money.
12.4. It is agreed that the duties of the Escrow Agent are only such as are herein specifically provided, being purely ministerial in nature, and Purchaser shall receive a credit against that the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release incur no liability whatsoever except for its willful misconduct or negligence so long as the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Dateacted in good faith. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) The Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item time deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent Agent, and shall be fully protected in acting in accordance with any written instructions given to it the Escrow Agent hereunder and believed by it the Escrow Agent to have been signed by the proper parties.
12.5. Upon the satisfaction of the mutual obligations of the parties hereunder, the Title Company shall record all appropriate instruments delivered to it at the Closing.
12.6. The Title Company hereby agrees to serve as the "real estate reporting person" (as such term is defined in Section 6045(e) of the Code). This Agreement shall constitute a designation agreement, the name and address of the transferor and transferee of the transaction contemplated hereby as well as the name and address of the Escrow Agent appear in Section 13.1 hereof, and Seller, Purchaser and the Escrow Agent agree to retain a copy of this Agreement for a period for four (4) years following the end of the calendar year in which the Closing occurs. The provisions of this Section shall survive the Closing.
12.7. The Escrow Agent, by its execution of this Agreement, acknowledges receipt of the Xxxxxxx Money.
12.8. The Escrow Agent's fees with respect to this transaction (other than its premium for issuing the Title Policy) shall not exceed $200.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Cornerstone Realty Income Trust Inc)
Escrow. (a) At the Closing, the Escrow Amount shall be deposited with a person or an institution selected by Buyer with the reasonable consent of the Stockholders, as escrow agent (the "Escrow Agent"), such deposit to constitute the escrow fund (the "Escrow Fund") and to be governed by the terms set forth herein and in the Escrow Agreement. The Escrow Fund shall be available to compensate Buyer pursuant to the indemnification obligations of the Stockholders as set forth in Section 8.2; provided, however, that Buyer may recover Losses in excess of the Escrow Amount directly from Mxxxxxx Xxxxxxxxx in respect of breaches of any of the representations and warranties set forth in the third through seventh sentences of Section 2.1 above. The Escrow Fund shall be the initial but not the exclusive recourse of the Buyer in the event the indemnification obligations of Mxxxxxx Xxxxxxxxx in respect of breaches of any of the representations and warranties set forth in the third through seventh sentences of Section 2.1 above exceed the amount of the Escrow Fund.
(b) The Escrow Agent will shall hold the Xxxxxxx Money Deposit Escrow Fund (or any then remaining portion thereof), subject to any earlier releases of any portion of the Escrow Fund pursuant to Section 8.5(e) below, in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until that date which shall be the earlier of (i) the Closingdate on which the Escrow Agent receives instructions to terminate the escrow and distribute the Escrow Fund signed by each of Buyer and the Stockholders, or and (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end eighteenth (18th) month anniversary of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration date of the Evaluation PeriodClosing Date (the "Termination Date"), the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by provided, however, that if such termination is pursuant to clause (ii) above, the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold and not release after the Escrowed Funds until otherwise directed Termination Date all or a portion of the Escrow Fund equal in a writing signed by all parties hereto or (ii) deposit stated value to the Escrowed Funds with the clerk dollar amount of any court of competent jurisdiction. Upon claim or claims described in any Indemnification Claim Notice that is submitted but not resolved before the Termination Date (such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have amount being referred to as the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel"Disputed Claim Amount").
(c) Within three (3) Business Days after the Termination Date (the "Release Date"), the Escrow Agent shall not release from escrow to the Stockholders, pro rata, all or any then remaining portion of the Escrow Fund, less the Disputed Claim Amount, if applicable. The Escrow Agent shall in all events release all of the remaining Escrow Fund (including the Disputed Claim Amount) on or before that date that shall be required three (3) months after the Release Date (the "Disputed Claim Release Date") unless on or prior to defend the Disputed Claim Release Date, the parties to this Agreement (other than the Escrow Agent) shall have (i) resolved any legal proceeding which may be instituted against it dispute by settlement and provided the Escrow Agent with mutually executed delivery instructions with respect to the Escrowed Fundsportion of the Escrow Fund then held by the Escrow Agent, of (ii) any party shall have commenced a legal action or arbitration to resolve such dispute, in which case the Escrow Agent shall continue to hold any then remaining portion of the Escrow Fund (including the Disputed Claim Amount) until such action or arbitration is concluded.
(d) The Escrow Fund, or any beneficial interest therein, may not be pledged, sold, assigned or transferred, including by operation of law, by any Stockholder or be taken or reached by any legal or equitable process in satisfaction of debt or other liability of any Stockholder, prior to the delivery to the Stockholders of the Escrow Fund by the Escrow Agent as provided herein.
(e) At any time after the Closing, Buyer may give written notice to the Stockholders and Escrow Agent that Buyer claims all or any part of the Escrow Fund in satisfaction of any damages for which Buyer is entitled to be indemnified pursuant to this Agreement (such claim is herein referred to as an "Indemnification Claim" and any such written notice of a claim is hereinafter referred to as an "Indemnification Claim Notice"). The Indemnification Claim Notice shall set forth in reasonable detail: (i) the nature of the Indemnification Claim; and (ii) the amount of the Indemnification Claim (hereinafter referred to as the "Indemnification Claim Amount"). In the event Buyer gives any Indemnification Claim Notice to Escrow Agent, Buyer shall also give such Notice to the Stockholders at the same time such Notice is given to the Escrow Agent. Within fifteen (15) calendar days following receipt of an Indemnification Claim Notice which specifies the amount of the Indemnification Claim, Escrow Agent shall charge the Escrow Fund for the Indemnification Claim Amount and pay to Buyer the Indemnification Claim Amount unless Escrow Agent receives a written notice from any Stockholder (the “Representative's Notice") objecting to such charge and payment and disputing the Indemnification Claim. The Representative's Notice shall be given to Buyer and Buyer's counsel at the same time the Representative's Notice is given to the Escrow Agent, and shall set forth (i) the amount of the Indemnification Claim Amount in dispute, (ii) the amount of the Indemnification Claim not in dispute, and (iii) in reasonable detail the basis for the dispute. In the event of such a dispute, the Property Escrow Agent shall pay to Buyer that portion of the Indemnification Claim Amount which is not in dispute, if any, and Buyer and the Stockholder giving the Representative Notice shall use commercially reasonable efforts to mutually resolve the dispute within ten (10) days of Buyer's receipt of the Representative's Notice. In the event such resolution does not occur within said ten-day time period, the dispute shall be promptly submitted to binding arbitration, conducted in accordance with the Commercial Rules of the American Arbitration Association, to determine which Party is entitled to the disputed portion of the Indemnification Claim Amount; provided, however, that if the disputed amount is greater than $500,000, either Party shall have the option, prior to the commencement of arbitration proceedings, to pursue and obtain resolution of such dispute and determination through litigation. The disputed portion of the Indemnification Claim Amount shall then be paid by the Escrow Agent pursuant to the arbitrators' award or judgment of the court, as the case may be. In resolving such dispute, the arbitrator or the subject matter court, as the case may be, shall determine the "prevailing party" for purposes of Section 11.5 below. Any amount paid to Buyer from the Escrow Fund pursuant to the foregoing provisions of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected deemed a reduction in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesPurchase Price.
Appears in 1 contract
Escrow. (a) At Closing, the Buyer will (in accordance with Section 1.03(b)(iii)) deliver to the Escrow Agent will hold the Xxxxxxx Money Deposit Escrow Amount to be held in escrow pursuant to the Escrow Agreement and to be disbursed in an interest-bearing account of accordance with the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination terms of this Agreement in accordance and the Escrow Agreement. The Escrow Account, together with any right hereunder. In the event Purchaser has not terminated this Agreement interest and earnings thereon, shall be held by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit Escrow Agent and all interest accrued thereon will be returned released by the Escrow Agent to Purchaser. In the event Seller or the Closing occursBuyer, as applicable, in accordance with the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount terms of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000Agreement.
(b) On the first Business Day following the twelve (12) month anniversary of the Closing Date (such anniversary date the “Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"Release Date”), if the amount then remaining in the Escrow Agent shall not be bound to release and deliver Fund exceeds the Escrowed Funds to either party but may either (i) continue to hold aggregate amount of all claims asserted against the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it Fund in accordance with Section 1.07 or Article VIII which have not been resolved pursuant to the advice terms set out in Section 1.07 or Article VIII (each a “Pending Claim”), then the Seller and the Buyer shall deliver a joint written instruction to the Escrow Agent directing the Escrow Agent to pay and distribute such excess (or if there are no Pending Claims as of the Escrow Release Date, the entire remaining amount in the Escrow Fund) to the Seller. Thereafter, after final resolution of each Pending Claim, the Seller and the Buyer shall deliver a joint written instruction to the Escrow Agent directing the Escrow Agent to pay and distribute that portion, if any, of the Escrow Fund held in respect of such counsel.
(c) Escrow Agent shall not Pending Claim that is to be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Fundspaid, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given such resolution, to it hereunder the Buyer or a Person or Persons other than the Sellers, and believed by it then to have been signed by pay to the proper partiesSeller an amount equal to the remaining Escrow Funds not held in respect of other Pending Claims.
Appears in 1 contract
Samples: Stock Purchase Agreement (Progress Software Corp /Ma)
Escrow. Contemporaneously with the execution of this Agreement, the Borrower shall executed an escrow agreement with the Lender as escrow holder (athe "Escrow Agreement") in the form of Exhibit F to this Agreement and shall execute and deliver to the Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account Holder a certificate for 20,027 shares of Common Stock as a portion of the type generally used by Escrow Agent for number of Conversion Shares (based upon a conversion price of $0.75 per share) underlying the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the principal amount of the Xxxxxxx Money Deposit, with Note evidencing the interestinitial Loan plus interest for the term and the number of Warrant Shares for which the Warrants shall be exercisable upon funding the initial Loan. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit Prior to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent toeach additional Loan, the release Borrower shall execute and deliver to the Escrow Holder a certificate for 100% of the Xxxxxxx Money Depositnumber of additional Conversion Shares (based upon a conversion price of $0.75 per share) underlying the principal amount of the Note evidencing that Loan plus interest for the term and 100% the number of additional Warrant Shares for which the Warrants shall be exercisable upon funding that Loan, provided thatuntil all of the Conversion Shares and Warrant Shares have been delivered to the Escrow Holder. All certificates for Conversion Shares and Warrant Shares delivered to the Escrow Holder shall be registered in the name of Infinity Financial Group, if Inc. Until such time as the Closing occursregistration statement covering the Conversion Shares and the Warrant shares is effective, the Xxxxxxx Money Deposit certificates shall bear a legend indicating that they have been issued in a transaction that is exempt from the registration requirements of the Securities Act, and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall may not be liable transferred except pursuant to any party registration under the Securities Act or an exemption from such registration. Except for any act or omissionsuch legend, except for bad faith, gross negligence or willful misconduct, the Common Stock underlying the Lender's Warrant and the parties agree to indemnify Escrow Agent Lender's Warrant shall be free and hold Escrow Agent harmless from clear of any and all legends, liens, claims, damagesstop orders or other restrictions. Not later than the third Business Day following the effective date of the Registration Statement, losses or expenses arising the Borrower shall cause the Common Stock underlying the Lender's Warrant to be registered in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit Lender's name free and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk clear of any court of competent jurisdiction. Upon such depositlegends, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action takenliens, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Fundsclaims, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document stop orders or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesrestrictions.
Appears in 1 contract
Samples: Loan Agreement (Cuidao Holding Corp)
Escrow. (a) The Escrow Agreement will provide for the Escrow Agent will thereunder to hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent Escrowed Amount as security for the holding payment of escrow funds until the earlier of (i) the Closingany claims for Losses to which Buyer Indemnitees are entitled pursuant to Section 2.3(d), or (ii) the termination of this Agreement Section 5.3, Section 7.2 and Section 9.14, in accordance with the terms of this Section 7.5 and subject to any right hereunderlimitations on claims set forth in this Article VII. In Any claims for Losses pursuant to the event Purchaser has not terminated this Agreement by the end preceding sentence shall be satisfied out of the Evaluation Period, amounts held in the Xxxxxxx Money Deposit shall be non-refundable Escrow Account generally regardless as to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration whether any individual Seller or all of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent Sellers are obligated to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000make any such payment.
(b) On the first anniversary of the Closing Date, all then remaining amounts held in the Escrow Agent Account that exceed Six Million Dollars ($6,000,000), if any, shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect distributed to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it Sellers in accordance with their individual Escrow Percentage, except the advice aggregate amount of then outstanding claims for Losses made by Buyer Indemnitees that have not been resolved and satisfied (if applicable) shall remain in the Escrow Account until such counselclaims have been resolved and satisfied, and thereafter all remaining amounts that exceed Six Million Dollars ($6,000,000) shall be distributed to the Sellers in accordance with their individual Escrow Percentage.
(c) On the third anniversary of the Closing Date, all then remaining amounts held in the Escrow Account, including interest and earnings thereon, shall be distributed to the Sellers in accordance with their individual Escrow Percentage, except the aggregate amount of then outstanding claims for Losses by Buyer Indemnitees that have not been resolved and satisfied (if applicable) shall remain in the Escrow Account until such claims have been resolved and satisfied, and thereafter all remaining amounts shall be distributed to the Sellers in accordance with each Seller’s Escrow Percentage.
(d) To the extent that the Sellers do not reimburse any Buyer Indemnitee within five business days after notice from Buyer Indemnitee for any amounts to which such Buyer is entitled pursuant to Section 2.3(d), Section 5.3, Section 7.2 and Section 9.14, then such Buyer Indemnitee shall be entitled at any time and from time to time, to deliver to the Escrow Agent written notice (a “Escrow Claim Notice”) instructing the Escrow Agent to deliver to such Buyer Indemnitee such portion of the Escrowed Amount as shall satisfy its claim for the amount owed by the Sellers to Buyer Indemnitee (a “Escrow Claim”), which notice shall specify with particularity the nature and amount of the Escrow Claim, including the provision of this Agreement entitling such Buyer Indemnitee to such Escrow Claim. Any such Escrow Claim Notice provided by Buyer Indemnitee to the Escrow Agent shall not also be required simultaneously provided to defend the Sellers’ Representative. The Sellers’ Representative may within 10 business days after receiving an Escrow Claim Notice give written notice to Buyer Indemnitee and the Escrow Agent of any legal proceeding objection thereto (the “Objection Notice”), which may notice shall specify with particularity the nature and basis for the Sellers’ objection. In the event that the Sellers’ Representative fails to timely deliver an Objection Notice, then Buyer and the Sellers’ Representative shall direct the Escrow Agent to disburse to Buyer Indemnitee such portion of the Escrowed Amount as shall satisfy such Escrow Claim set forth in such Escrow Claim Notice. If the Sellers’ Representative timely delivers an Objection Notice, then Buyer and the Sellers’ Representative shall promptly, and in any event within 30 business days after Buyer Indemnitee’s receipt of the Objection Notice, meet to attempt to resolve any disputes with respect thereto. If Buyer and the Sellers’ Representative are unable to resolve a dispute, such dispute shall be instituted against it resolved in accordance with the provisions set forth in Section 9.12. Except as otherwise provided in this Section 7.5, disbursements of the Escrowed Amount shall be governed by the Escrow Agreement. All fees, costs and expenses of the Escrow Agent with respect to the Escrowed Funds, the Property or the subject matter of this Escrow Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder paid 50% by Sellers from the Escrowed Amount and believed 50% by it to have been signed by the proper partiesBuyer.
Appears in 1 contract
Escrow. (a) The Escrow Agent will hold shall deposit the Xxxxxxx Money Deposit in escrow Escrow Fund in an interest-bearing account that it maintains with JP Morgan Chase Bank. The Escrow Agent shall be under no duty to maxixxxx xxx rate of return on the Escrow Fund or to insure against any reduction in the value of the type generally used by Escrow Fund. Any increase or decrease in the value of the Escrow Fund shall inure to the party to which the Escrow Fund is disbursed.
(b) If the Property is conveyed to Purchaser in accordance with the terms and provisions of this Agreement or if this Agreement shall be terminated for any reason other than the default of Seller or its inability or unwillingness to convey the Property to Purchaser in accordance with the terms and provisions of this Agreement, then the Escrow Fund, inclusive of the interest, but without credit for the interest against the Purchase Price, shall be disbursed to Seller. If the Property is not conveyed to Purchaser in accordance with the terms and provisions of this Agreement and this Agreement shall be terminated due to the default of Seller or its inability or unwillingness to convey Acceptable Title to the Real Property or if Purchaser terminates this Agreement pursuant to Section 12, then the Escrow Fund shall be disbursed to Purchaser. Notwithstanding any contrary provision herein, the Escrow Agent shall retain the Hold Back Amount received by it hereunder for refund to Seller (subject to any claim by Purchaser that Seller has failed in the holding payment and performance of escrow funds until its post-closing obligations hereunder) on the earlier of date which is six (6) months after the Closing Date, which date shall be TIME IS OF THE ESSENCE, subject in each case to the Hold Back delivery requirements described in Section 13.3 below.
(c) Prior to delivering (i) the Escrow Fund to Seller (except upon default of Purchaser or at or after the Closing, ); or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable Escrow Fund to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid pursuant to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation PeriodParagraph (b) above, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent shall deliver to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, Seller and Purchaser shall receive a credit against the Purchase Price in the amount notice of the Xxxxxxx Money DepositEscrow Agent's intention to deliver the Escrow Fund (the "Release Amount"). If, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party within five (5) Business Days to dispute, or consent toafter tendering such notice, the release Escrow Agent shall not have received a notice from either party instructing the Escrow Agent not to deliver the Release Amount as specified in the Escrow Agent's notice, the Escrow Agent shall deliver the Release Amount to the party so specified. If, however, the Escrow Agent receives within such five (5) business Day period written instructions from either party that the Escrow Agent should not so deliver the Release Amount, the Escrow Agent shall continue to hold the Release Amount (subject to the Escrow Agent's right to commence an action by way of interpleader, in which case the Release Amount shall be delivered to the Clerk of the Xxxxxxx Money DepositSupreme Court of the State of New York, New York County) until it receives a notice executed by Seller and Purchaser and delivery of a copy of any final judicial order or non-judicial decision to the Escrow Agent, whereupon the Escrow Agent shall disburse the Release Amount as provided thatin such joint instructions, order or decision. Seller and Purchaser hereby agree to submit themselves to the jurisdiction of the courts of the State of New York sitting in the County of New York and service upon them may be effected by the Escrow Agent in any way provided by statute.
(d) If this Agreement is terminated in accordance with the terms hereof or if the Closing occursdoes not take place under this Agreement by reason of the failure of Purchaser or Seller to comply with its obligations hereunder, then Escrow Agent shall pay the Escrow Fund as required by the terms of this Agreement; provided, however, that notwithstanding the foregoing, Escrow Agent shall not pay over the Escrow Fund to any party hereunder unless and until the following procedure is complied with: The party requesting disbursement of the Escrow Fund (the "Requesting Party") shall deliver notice to Escrow Agent and all other parties hereto. Within three (3) days after receipt of such notice of request, Escrow Agent shall deliver notice to all other parties hereto stating that the Requesting Party has requested such disbursement (and including a copy of the Requesting Party's notice). Within five (5) business days after receipt of Escrow Agent's notice, the Xxxxxxx Money Deposit non-requesting party shall either: (a) agree to permit such disbursement by Escrow Agent or (b) inform Escrow Agent in writing that the non-requesting party does not agree to permit such disbursement. If the non-requesting party acts under clause (a), then Escrow Agent shall make the disbursement as requested by the Requesting Party. If the non-requesting party acts under clause (b), then Escrow Agent shall not make any disbursement except as provided in Section 13.1(c) above. If the non-requesting party fails to respond during the foregoing five (5) business day period, same shall be deemed to be the response of the non-requesting party under clause (a) on the last day of such five (5) business day period.
13.2 Any delivery of any portion of the Hold Back Amount shall be made strictly in accordance with Section 13.3 as if the Hold Back Amount were the Escrow Fund. Any party who wrongfully objects to such delivery shall indemnify the party entitled to such delivery for all actual and interest thereon will be applied as consequential damages arising from the delay or absence of such delivery, including attorneys' fees in establishing such entitlement and any other rights hereunder.
13.3 In the event that on or before 180 days after Closing (the "Surviving Obligations Out Date"), with "TIME BEING OF THE ESSENCE AS TO SUCH DATE", Purchaser determines that it has a claim against Seller under Seller's surviving obligations, which claim(s) exceeds $250,000 in the aggregate for all such claims, then Purchaser shall deliver notice thereof to Seller and to Escrow Agent, which notice shall set forth above the reason why Purchaser believes that it has a claim against Seller in excess of $250,000 and the amount requested to be disbursed by Escrow Agent from the Hold Back Amount with respect to Seller. Within five (5) business days after receipt of such notice, Escrow Agent shall deliver notice to Seller (with a copy to Purchaser) stating that Purchaser has made a claim on the Hold Back Amount (and including a copy of Purchaser's notice of claim). Within ten (10) business days after receipt of Escrow Agent's notice, Seller shall either (i) agree to permit such disbursement by Escrow Agent, or (ii) inform Escrow Agent and Purchaser that Seller does not agree to permit such disbursement. If Seller acts under clause (i), then Escrow Agent shall make the disbursement as requested by Purchaser. If Seller acts under clause (ii), then Escrow Agent shall not make any disbursement except if pursuant to (a) subsequent joint written instructions of Seller and Purchaser or (b) pursuant to court order. If Seller fails to respond during the foregoing ten (10) day period, same shall be deemed to be the response of Seller under clause (i) on the last day of such ten (10) day period. In the event that no claim is made by Purchaser against Seller on or before the Surviving Obligations Out Date or if the amount of the claim(s) made by Purchaser on or before the Surviving Obligations Out Date is less than $250,000 in the aggregate, then and in either event, Escrow Agent shall automatically and without further notice, release the Hold Back Amount (or the remaining Hold Back Amount to the extent there has been a prior release of a portion of the Hold Back Amount) to Seller without the necessity of complying with the foregoing procedure which compliance is waived by Purchaser. In the event a claim is timely made by Purchaser for an amount greater than $250,000 but less than the Hold Back Amount, then Escrow Agent, on the first day after the Surviving Obligations Out Date, shall automatically and without further notice, release the Hold Back Amount in excess of the amount claimed by Purchaser, to Seller.
(a) Seller and Purchaser shall jointly and severally indemnify and hold the Escrow Agent harmless for all expenses, including legal fees, and charges and other liabilities incurred by the Escrow Agent arising out of this Agreement, except to the extent that such expenses or liabilities result From the Escrow Agent's misconduct. The provisions of this paragraph (a) shall survive the delivery of the Conveyancing Instruments at the Closing Date. Purchaser represents that its tax identification number, for purposes or the termination of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000this Agreement.
(b) The Escrow Agent may resign upon ten (10) days' prior notice to each of Seller and Purchaser and (i) depositing the Escrow Fund with the Clerk of the County of New York, New York or (ii) transferring the Escrow Fund to a bank or other institution acceptable to Seller and Purchaser which shall have assumed in writing the obligations of the Escrow Agent pursuant to this Agreement. Upon the effective date of such resignation, the Escrow Agent shall not be liable to any party have no further obligations arising hereunder.
(c) The Escrow Agent is hereby released from liability for any act performed by it or omission, except for bad faith, omitted to be performed in its performance of its duties hereunder other than gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend inquire into the authority of any legal proceeding which person purporting to give a notice on behalf of Seller or Purchaser and may be instituted against it with respect assume that all signatures are genuine. It is understood and agreed that the persons and firms referred to in Section 17 as counsel for each of Seller and Purchaser are authorized to give notices to the Escrowed Funds, the Property or the subject matter of Escrow Agent pursuant to this Agreement unless requested to do so by Purchaser or Section 13.
(d) Seller and is indemnified to its satisfaction against Purchaser acknowledge that the cost and expense of such defense. Escrow Agent shall is acting solely as a stakeholder hereunder and not be required to institute legal proceedings the agent of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered either party in connection with its obligations hereunder. The escrow created hereunder and the obligations of the Escrow Agent as an escrow agent hereunder are for the benefit of the parties to this Agreement. Agreement only, and no other person shall have any rights hereunder nor shall the Escrow Agent have any obligations or duties to any other person other than a party to this Agreement by reason or arising out of this Section 13.
13.5 The Escrow Agent is executing this Agreement solely for the purpose of agreeing to the terms and provisions of this Section 13.
13.6 The Escrow Agent shall be fully protected in acting in accordance a beneficiary of the terms and provisions of this Section13; and shall be obligated to comply with any written instructions given to it hereunder and believed by it to have been signed by the proper partiescourt order.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Reckson Operating Partnership Lp)
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) At the Closing, or Buyer shall deposit the Escrow Amount in an account (iithe “Escrow Account”) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation PeriodU.S. Bank National Association (together with its successors and permitted assigns, the Xxxxxxx Money Deposit shall “Escrow Agent”) to be non-refundable to Purchaserheld, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit invested and all interest accrued thereon will be returned distributed by the Escrow Agent pursuant to Purchaserthe terms and conditions of this Agreement and the Escrow Agreement. In The Indemnity Escrow Fund shall be used for the event sole purpose of securing the Closing occursFounders’ obligations under Section 9.2(a), subject to the Xxxxxxx Money Deposit limitations set forth in Section 9.1, and all interest accrued thereon will the Adjustment Escrow Fund shall be used for the sole purpose of securing the Shareholders’ obligations pursuant to Section 3.3.
(b) The Escrow Account shall be held as trust funds and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any Person, and shall be held and disbursed solely for the purposes and in accordance with the terms of the Escrow Agreement and this Agreement.
(c) Fifty percent (50%) of any amounts held in the Indemnity Escrow Fund that are not subject to then outstanding indemnification claims shall be released to Sellerthe Paying Agent (or, and Purchaser shall receive a credit against if the Purchase Price Paying Agent is unable or unwilling to act as paying agent following the Closing, to an alternative paying agent designated by the Shareholder Representative), for further distribution to the Founders, pro rata, based on the percentages set forth in the amount of the Xxxxxxx Money DepositFunds Flow, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party within five (5) Business Days to dispute, or consent to, following the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on date that is nine (9) months after the Closing Date. Purchaser represents Any remaining amounts held in the Indemnity Escrow Fund that its tax identification numberare not subject to then outstanding indemnification claims shall be released to the Paying Agent (or, if the Paying Agent is unable or unwilling to act as paying agent following the Closing, to an alternative paying agent designated by the Shareholder Representative), for purposes of reporting further distribution to the interest earningsFounders, pro rata, based on the percentages set forth in the Funds Flow, within five (5) Business Days following the date that is 00-0000000. Seller represents that its tax identification number, for purposes of reporting eighteen (18) months after the interest earnings, is 00-0000000Closing Date.
(bd) Any income, gains and losses of the Escrow Agent Account shall not be liable to any party for any act included by Buyer as taxable income or omission, except for bad faith, gross negligence or willful misconductloss of Buyer, and any income and gains of the parties agree Escrow Account shall be available to indemnify Buyer as part of the Escrow Agent and hold Escrow Agent harmless from any and all claimsAccount, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue any amount of the Indemnity Escrow Fund not paid to hold the Escrowed Funds until otherwise directed Buyer in a writing signed by all parties hereto or connection with an indemnification claim in accordance with Section 9.2(a) and (ii) deposit any amount of the Escrowed Funds Adjustment Escrow Fund not paid to the Buyer in connection with a true-up under Section 3.3(f), shall ultimately be distributable to the clerk of any court of competent jurisdiction. Upon such depositFounders or the Shareholders, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action takenrespectively, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the Escrow Agreement. The cost and expense of such defense. the Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent Account shall be fully protected in acting in accordance with any written instructions given to it hereunder borne as follows: 50% by Buyer and believed by it to have been signed 50% by the proper partiesShareholders.
Appears in 1 contract
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the ClosingClosing of the purchase and sale of all of the Properties, or (ii) the termination of this Agreement with respect to all of the remaining Properties in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior with respect to the expiration all of the Evaluation Periodremaining Properties pursuant to an express right of termination established in this Agreement, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, party entitled to the Xxxxxxx Money Deposit pursuant to the terms of this Agreement. Upon the Closing of the purchase and sale of a Property, the applicable portion of the Xxxxxxx Money Deposit as provided in Section 3.3 and all interest accrued thereon will be released and paid to Seller, and Purchaser shall receive a credit at such Closing against the Purchase Price of the Property or Properties subject to such Closing in the amount of the applicable portion of the Xxxxxxx Money DepositDeposit as provided in Section 3.3, with plus the interestinterest that has accrued thereon. In all other instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five three (53) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. In the event of any assignment of this Agreement to a Qualified Assignee that provides for all or any part of the Xxxxxxx Money Deposit, Purchaser will provide to Seller the tax identification number for such Qualified Assignee. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (First Midwest Bancorp Inc)
Escrow. (a) Subject to this Section 4.05, the Escrow Agent will shall hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account Escrow Fund for a period commencing on the Closing Date and ending on the date that is twelve (12) months after the Closing Date (the “Escrow Period”) as security to pay, or be applied against, any Damages incurred by any Buyer Indemnified Party with respect to the indemnification obligations of Seller pursuant to Article XI, disbursed by the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with the Escrow Agreement. The Escrow Agreement shall provide that all interest accruing on amounts in the Escrow Account shall be deposited into the Escrow Account and distributed in accordance with the Escrow Agreement. Upon the expiration of the Escrow Period, the Escrow Agent shall pay to Seller the balance of the funds in the Escrow Account at such time, if any; provided, however, that if any right hereunderBuyer Indemnified Party Damages remain unresolved or unpaid as of the expiration of the Escrow Period, then the Escrow Agent shall retain that portion of the funds in the Escrow Account necessary to satisfy such unresolved Buyer Indemnified Party Damages pending resolution thereof, which portion shall remain in the Escrow Account until such matters are finally resolved notwithstanding any reference to, or expiration of, the Escrow Period, and any amounts in excess of such retained portion of the Escrow Account shall be released to Seller in accordance with the terms and conditions of the Escrow Agreement. In the event Purchaser has not terminated this Agreement by Following the end of the Evaluation Escrow Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated as each unresolved Buyer Indemnified Party Damages amount identified prior to the expiration end of the Evaluation PeriodEscrow Period for which an amount was reserved under this Section 4.05 is resolved, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned Escrow Agent shall either pay the Buyer Indemnified Party Damages subject to the limitations in Article XI or pay to Seller the amount so reserved for such Buyer Indemnified Party Damages, as appropriate. When there are no remaining unresolved claims (which were unresolved as of the conclusion of the Escrow Period), the balance of the Escrow Account which has not been used by the Escrow Agent to Purchaser. In the event the Closing occurspay Buyer Indemnified Party Damages, the Xxxxxxx Money Deposit and all interest accrued thereon will if any, shall be released paid to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. Escrow Agent shall hold the Xxxxxxx Money, together with all interest earned thereon, in its interest bearing escrow account, in accordance with the following:
(a) Escrow Agent will shall hold the Xxxxxxx Money, together with all interest earned thereon, in Escrow Agent's escrow account, and shall cause the Xxxxxxx Money Deposit to earn interest at then prevailing insured money market rates on deposits of similar size. Escrow Agent shall have no liability for any fluctuations in escrow the interest rate paid in an interest-bearing account respect of the type generally used Xxxxxxx Money, and is not a guarantor thereof.
(b) If Escrow Agent receives a written notice signed by both Seller and Purchaser stating that the Closing has occurred and that Seller is entitled to receive the Xxxxxxx Money, Escrow Agent shall deliver the Xxxxxxx Money, together with the interest earned thereon to Seller. If Escrow Agent receives a written notice signed by both Seller and Purchaser that this Agreement has been terminated or canceled, Escrow Agent shall deliver the Xxxxxxx Money, together with the interest thereon, as directed therein.
(c) If Escrow Agent receives a written request signed by Purchaser or Seller (the "NOTICING PARTY") stating that this Agreement has been canceled or terminated and that the Noticing Party is entitled to the Xxxxxxx Money, Credit, or that the other party hereto (the "NON-NOTICING PARTY") has defaulted in the performance of its obligations hereunder, Escrow Agent shall mail (by certified mail, return receipt requested) a copy of such request to the Non-Noticing Party. The Non-Noticing Party shall have the right to object to such request for the Xxxxxxx Money by written notice of objection delivered to and received by Escrow Agent for not more than ten (10) Business Days after the holding date of escrow funds Escrow Agent's mailing of such copy to the Non-Noticing Party, but not thereafter. If Escrow Agent shall not have so received a written notice of objection from the Non-Noticing Party, Escrow Agent shall deliver the Xxxxxxx Money, together with the interest earned thereon, to the Noticing Party. If Escrow Agent shall have received a written notice of objection within the time herein prescribed, Escrow Agent shall not comply with any requests or demands on it and shall continue to hold the Xxxxxxx Money, together with any interest earned thereon, until the earlier of Escrow Agent receives either (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event a written notice signed by both Seller and Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party stating who is entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration (and interest) or (ii) a final order of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount court of competent jurisdiction directing disbursement of the Xxxxxxx Money Deposit(and interest) in a specific manner, in either of which events Escrow Agent shall then disburse the Xxxxxxx Money, together with the interestinterest earned thereon, in accordance with such notice or order. In all instancesEscrow Agent shall not be or become liable in any way or to any person for its refusal to comply with any such requests or demands until and unless it has received a direction of the nature described in subdivision (i) or (ii) above.
(d) Any notice to Escrow Agent shall be sufficient only if received by Escrow Agent within the applicable time period set forth herein. All mailings and notices from Escrow Agent to Seller and/or Purchaser, or from Seller and/or Purchaser to Escrow Agent, provided for in this PARAGRAPH 14 shall be addressed to the party to receive such notice at its notice address set forth in PARAGRAPH 12 above (with copies to be similarly sent to the additional persons therein indicated), but the provisions of PARAGRAPH 12 relating to the manner of giving notices and the effective dates thereof shall have no application to the provisions of this PARAGRAPH 14.
(e) Notwithstanding the foregoing, if Escrow Agent shall have received a written notice of objection as provided for in PARAGRAPH 14 (C) above within the time therein prescribed, or shall have received at any time before actual disbursement of the Xxxxxxx Money a written notice signed by either Seller or Purchaser disputing entitlement to the Xxxxxxx Money or shall otherwise believe in good faith at any time that a disagreement or dispute has arisen between the parties hereto over entitlement to the Xxxxxxx Money (whether or not litigation has been instituted), Escrow Agent shall not release have the right, upon written notice to both Seller and Purchaser, (i) to deposit the Xxxxxxx Money Deposit Money, together with the interest earned thereon, with the Clerk of the Court in which any litigation is pending and/or (ii) to either party until take such reasonable affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Agent has been requested Agent, including, without limitation, the depositing of the Xxxxxxx Money, together with the interest earned thereon, with a court of competent jurisdiction and the commencement of an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser to release is the Xxxxxxx Money Deposit losing party, and has given the other party five (5) Business Days to dispute, thereupon Escrow Agent shall be released of and from all liability hereunder except for any previous gross negligence or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000willful misconduct.
(bf) Escrow Agent is acting hereunder without charge as an accommodation to Purchaser and Seller, it being understood and agreed that Escrow Agent shall not be liable for any error in judgment or any act done or omitted by it in good faith or pursuant to court order, or for any mistake of fact or law. Escrow Agent shall not incur any liability in acting upon any document or instrument believed thereby to be genuine. Escrow Agent is hereby released and exculpated from all liability hereunder, except only for willful misconduct or gross negligence. Escrow Agent may assume that any person purporting to give it any notice on behalf of any party for any act or omission, except for bad faith, gross negligence or willful misconducthas been authorized to do so. Escrow Agent shall not be liable for, and the parties Purchaser and Seller hereby jointly and severally agree to indemnify Escrow Agent and hold against, any loss, liability or expense, including reasonable attorney's fees (either paid to retained attorneys or, representing the fair value of legal services rendered by Escrow Agent harmless from to itself), arising out of any dispute under this Agreement, including the cost and all claims, damages, losses or expenses expense of defending itself against any claim arising in connection herewith. The parties acknowledge that hereunder.
(g) Escrow Agent is may act or refrain from acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice in respect of a dispute between the parties with respect any matter referred to the Xxxxxxx Money Deposit in this Agreement in full reliance upon and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk advice of counsel selected by it (including any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel member of its own choosing (if it deems such consultation advisablefirm) and shall not be liable for any action taken, suffered fully protected in so acting or omitted by it in accordance with refraining from acting upon the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. If fewer than 100% of the Turbines have been Placed in Service as of the Final Capital Contribution Date:
(i) The Adjusted Base Case Model run in connection with the Final Capital Contribution Date shall reflect (A) the actual number of Turbines that have been Placed in Service as of the Final Capital Contribution Date and (B) the actual number of Turbines that have not been Placed in Service but which (x) the Class B Equity Investor reasonably expects to be Placed in Service by no later than the Outside Date and (y) the Independent Engineer has certified are reasonably expected to (I) satisfy the clauses (a) through (e) of the definition of Placed in Service and (II) achieve “Taking Over” (as defined in the TSA) in each case, prior to the Outside Date (such Turbines referred to in this subclause (B), the “Additional Turbines”).
(ii) A portion of the Final Class A Capital Contribution, calculated as the Additional Turbine Escrow Factor multiplied by the number of Additional Turbines, will be paid directly into an escrow account (the “Additional Turbine Escrow Account”) governed by the Escrow Agreement.
(iii) For the avoidance of doubt, and without limiting any other provision of this Agreement to the contrary, the Class B Equity Investor and its Affiliates shall use commercially reasonable efforts to cause such Additional Turbines to be Placed in Service by no later than the Outside Date. If the Class B Equity Investor fails to cause any of the Additional Turbines to be Placed in Service by the Outside Date, the Class B Equity Investor shall deliver an Additional Turbine Release Certificate to each of the Class A Equity Investors and the Escrow Agent will hold and the Xxxxxxx Money Deposit in escrow in an interest-bearing account portion of the type generally used by Final Class A Capital Contribution placed into the Additional Turbine Escrow Account established pursuant to the Escrow Agreement with respect to such Additional Turbines shall be immediately returned to the Class A Equity Investors, together with interest at a rate per annum (based on a 360-day year of twelve 30-day months) equal to the Target IRR for the period commencing on the Final Capital Contribution Date and ending on the date such funds are returned to each Class A Equity Investor (it being understood that (x) interest shall not accrue on any portion of the Final Class A Capital Contribution placed into the Additional Turbine Escrow Account with respect to incomplete Additional Turbines to the extent such incomplete Additional Turbines become Completed Additional Turbines in accordance with clause (iv) below and (y) any portion of the Final Class A Capital Contribution placed into the Additional Turbine Escrow Account that is returned to any Class A Equity Investor pursuant to this Section 2.2(c)(iii), together with interest as calculated in accordance with this Section 2.2(c)(iii), shall be reflected in the “Target IRR Report” (as defined in the LLC Agreement)), and the Class B Equity Investor shall have no liability to any Class A Equity Investor for any loss of ITC or other tax benefits expected from such Turbines.
(iv) If the Class B Equity Investor causes any of such Additional Turbines to become a Completed Additional Turbine, the Class B Equity Investor shall deliver to the Class A Equity Investors a duly completed Additional Turbine Placed in Service Certificate with respect to such Completed Additional Turbine(s), which shall, in connection with the Type Certificate, include the Independent Engineer’s verification of each Major Component for each applicable Completed Additional Turbine, and, promptly following delivery of such Additional Turbine Placed in Service Certificate, the Class A Equity Investors shall instruct the Escrow Agent in writing to release the portion of the Final Class A Capital Contribution placed into the Additional Turbine Escrow Account that is allocable to such Completed Additional Turbine to be distributed to the Class B Equity Investor. Notwithstanding the foregoing, to the extent that any of the Major Components used for any of the applicable Completed Additional Turbines were not set forth on the Type Certificate, subject to all other conditions being satisfied or waived, the aforementioned release and distribution of funds from the Additional Turbine Escrow Account for the holding Completed Additional Turbines shall occur and Section 6.1(c)(i) of escrow funds until the LLC Agreement shall apply.
(v) If the Class B Equity Investor causes any of the Additional Turbines to become a Completed Additional Turbine then, no later than the earlier of (i1) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end date of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price Additional Turbine Placed in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties Service Certificate with respect to the Xxxxxxx Money Deposit final Completed Additional Turbine to be Placed in Service and (2) the interest earned thereon (Outside Date, the "ESCROWED FUNDS"), Escrow Agent Class B Equity Investor shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesClass A Equity Investors a Completed Additional Turbine Cost Segregation Report.
Appears in 1 contract
Samples: Equity Capital Contribution Agreement (Avangrid, Inc.)
Escrow. Prior to the closing date, the Shareholder shall deliver to an escrow agent, to be agreed upon by the parties, hereinafter called escrow agent 1,000,000 shares of Master Financial duly indorsed. Said shares representing all the issued and outstanding shares of Master Financial. Tensleep shall deliver to the escrow agent 700,000 shares of its common stock as described in Section One of this agreement. The escrow shall be subject to the following terms and conditions:
(a) Escrow Agent will hold On the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation PeriodClosing Date, the Xxxxxxx Money Deposit escrow agent shall be non-refundable to Purchaser, but shall be credited against deliver the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration shares of the Evaluation Period, the Xxxxxxx Money Deposit Tensleep and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied Master Financial's common stock as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes and provided in Section One and Two of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000this agreement.
(b) Escrow Agent All fees and expenses of the escrow agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and borne equally by the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselparties.
(c) Escrow Agent Additional shares received by the Shareholder with respect to shares held in escrow, as a result of stock dividends and stock splits shall not be required delivered to defend the escrow agent and shall be subject to the terms of this agreement.
(d) The escrow agent shall hold the undistributed shares deposited hereunder until May 1, 2001, whereupon he shall release to the Shareholder the balance of shares remaining in escrow after adjustment as set forth in Section Two of this agreement and payment to Tensleep of all of its indemnity claims, approved as hereinafter provided, except that in the event a claim that may result in indemnification hereunder remains undetermined as of April 30, 2001, as adequate number of shares shall be retained in escrow to provide for payment of such claim.
(e) In the event of any legal proceeding claim by Tensleep for indemnification hereunder, Tensleep shall give written notice to the Shareholder thereof, and the parties shall attempt to reach agreement in respect thereto. If the parties fail to reach agreement within ten days after notice of a claim has been given, the issue shall be submitted to arbitration in accordance with the rules and requirements of the American Arbitration Association then obtaining. The decision of the arbitrator shall be final and binding on all parties, and appropriate instructions in conformity therewith shall immediately be given by the arbitrator to the escrow agent, who is authorized and directed to rely on such instructions.
(f) The Shareholder shall have the right, at his own expense, to be represented by counsel of his own choice in connection with the defense of any claim which may be instituted brought against it with Master Financial in respect to which Tensleep may be entitled to indemnification under this agreement. In the Escrowed Fundsevent of any such claim, Tensleep shall give prompt written notice thereof to the Shareholder. If, after having received such notice, the Property or Shareholder elects not to participate in the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense defense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent claim, they shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed bound by the proper partiesresult obtained by Tensleep in defense thereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Tensleep Technologies Inc)
Escrow. (a) Escrow Agent will hold shall deposit the Xxxxxxx Money Deposit Escrow Amounts in escrow in an interest-bearing account of accounts or other liquid investments not subject to market fluctuation in value and reasonably acceptable to the type generally used by Company and Buyer, and shall hold and disburse the Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement Amounts and any interest accrued thereon in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end terms of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000Agreement.
(b) Upon final determination of the Adjusted Purchase Price pursuant to Section 2.5(a), the Auditor (or Disputes Auditor, as the case may be) shall deliver to the Escrow Agent a certification in the form of EXHIBIT A to the Escrow Agreement. The Escrow Agent shall not be liable disburse to any party for any act or omissionthe Buyer the amount, except for bad faithif any, gross negligence or willful misconductby which the Adjusted Purchase Price is less than the Purchase Price (the "Price Adjustment"), plus accrued interest thereon, up to a maximum of the Escrow Amounts and interest accrued thereon. The Company shall promptly deposit in escrow with the Escrow Agent the amount of the Price Adjustment, plus interest accrued thereon, it being understood by the parties agree hereto that after payment of the Price Adjustment to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claimsBuyer, damages, losses or expenses arising there will initially remain in connection herewith. The parties acknowledge that Escrow Agent is acting solely escrow as stakeholder for their mutual convenience. the Indemnification Allowance the sum of One Hundred Seventy-Five Thousand Dollars ($175,000.00).
(c) In the event that the Price Adjustment exceeds the Escrow Amount, Escrow Agent receives shall notify Company and Company, in addition to making the deposit in escrow referred to in (b) above, shall remit the difference, plus accrued interest thereon, calculated at the same rate as interest on funds in escrow, to the Buyer within thirty (30) days.
(d) Upon receipt by Escrow Agent of evidence reasonably satisfactory to it that the Company has paid or evidence that funds are needed to pay Taxes of any kind of the Company for all periods up through and including the Closing Date, Escrow Agent shall disburse to the Company from the Indemnification Allowance the amount paid by the Company to such taxing authority.
(e) Upon receipt of written instructions from the Company and Centrum Subsidiary, Escrow Agent shall disburse all of the remaining Indemnification Allowance, including interest accrued thereon, to the Company.
(f) Unless on or prior to November 1, 1998 Centrum Subsidiary shall have given written notice to the Company and Escrow Agent of a dispute between claim or claims by Centrum Subsidiary against the parties with respect to Company arising from a breach of the Xxxxxxx Money Deposit and Company of any of the interest earned thereon provisions of this Agreement (the a "ESCROWED FUNDSBuyer Claim"), Escrow Agent shall disburse all of the remaining Indemnification Allowance, including interest accrued thereon, to the Company.
(g) If Escrow Agent receives written notice from Centrum Subsidiary of a Buyer Claim prior to November 1, 1998, Escrow Agent shall hold, retain and not be bound to release disburse the amount of such Buyer Claim from the Indemnification Allowance unless and deliver until Escrow Agent receives written notice from the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in Company and Centrum Subsidiary, or a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk final order of any a court of competent jurisdiction. Upon such deposit, directing Escrow Agent will be released from all duties and responsibilities hereunderto disburse the Indemnification Allowance to the Company, any taxing authority or any claimant whose Buyer Claim is based upon a Retained Liability. Escrow Agent shall have shall, however, disburse to the right to consult with separate counsel Company the amount by which the Indemnification Allowance exceeds the sum of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselall Buyer Claims.
(ch) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller All costs and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility fees for the genuineness or validity administration and handling of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall Amounts will be fully protected in acting in accordance with any written instructions given to it hereunder and believed paid by it to have been signed by the proper partiesBuyer.
Appears in 1 contract
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the The Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but except as otherwise set forth herein, and shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all other instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit as follows: (i) if requested by Seller, then upon Seller’s written demand therefore stating that Purchaser defaulted in the performance of Purchaser’s obligations to close under this Agreement and has given the other party facts and circumstances forming the basis of such default and (ii) if requested by Purchaser, then upon Purchaser’s written demand therefore, stating that Seller defaulted in the performance of Seller’s obligations to close under this Agreement and the facts and circumstances forming the basis of such default; provided, that, in neither case shall Escrow Agent release the Xxxxxxx Money Deposit until five (5) Business Days following Escrow Agent’s delivery of such written demand to disputethe non-requesting party; provided, or consent tofurther, that if during such five (5) Business Days period, the non-requesting party shall have delivered to Escrow Agent a written dispute to the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, Escrow Agent shall not release the Xxxxxxx Money Deposit unless it receives further written direction signed by Seller and interest thereon will be applied Purchaser. If no written dispute is so delivered, Escrow Agent shall disburse the Xxxxxxx Money Deposit as set forth above on the Closing Datedirected. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller Harsimus represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000, and Columbia represents that its tax identification number, for purposes of reporting interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"“Escrowed Funds”), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) At the Closing, or (ii) Acquiror shall pay to the termination of Escrow Agent, to be held as provided in this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation PeriodAgreement, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation PeriodLitigation Side Letter, the Xxxxxxx Money Deposit Special Indemnity Side Letter and all interest accrued thereon will be returned the escrow agreement among the Acquiror, the Representative and the Escrow Agent in the form of Exhibit E (the “Escrow Agreement”), to an escrow account (the “Indemnity Escrow Fund”) designated by the Escrow Agent an amount equal to Purchaser. In $9,375,000.00 (the event the Closing occurs“Indemnity Escrow Amount”), the Xxxxxxx Money Deposit and all interest accrued thereon which will be released available solely to Seller, and Purchaser shall receive a credit against pay the Purchase Price in the amount valid indemnity claims of the Xxxxxxx Money DepositAcquiror Indemnitees pursuant to Section 11.2 and the Special Indemnity Side Letter and the Litigation Side Letter and the Adjustment Amount pursuant to Section 2.9(e). The Unclaimed Indemnity Escrow Amount shall be released in full to the Representative on the Survival Termination Date, with the interest. In all instances, Escrow Agent which shall not release the Xxxxxxx Money Deposit be first used to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release pay any Representative Expenses in excess of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied Holdback Amount as set forth above on in Section 2.7 and then paid to the Closing DateCompany Stockholders in proportion to their Pro Rata Shares. Purchaser represents Any remaining Unclaimed Indemnity Escrow Amount that its tax identification number, for purposes the Company Stockholders thereafter become entitled to receive under the terms of reporting this Agreement and the interest earnings, is 00-0000000Escrow Agreement shall thereafter be first used to pay any Representative Expenses in excess of the Holdback Amount as set forth in Section 2.7 and then paid to the Company Stockholders in proportion to their Pro Rata Shares. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.15 WA 4941984.13 WCSR 32390522v12
(b) At the Closing, Acquiror shall pay to the Escrow Agent shall not to be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, held as provided in this Agreement and the parties agree Escrow Agreement to indemnify an escrow account (the “Purchase Price Adjustment Escrow Fund”) designated by the Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect an amount equal to the Xxxxxxx Money Deposit and the interest earned thereon $1,000,000.00 (the "ESCROWED FUNDS"“Purchase Price Adjustment Escrow Amount”), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent which will be released from all duties and responsibilities hereunder. Escrow Agent shall have available solely to pay any amount by which the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselAdjustment Amount is a negative number.
(c) At the Closing, Acquiror shall pay to the Escrow Agent to be held as provided in this Agreement, the Special Indemnity Side Letter and the Escrow Agreement to an escrow account (the “Special Escrow Fund” and together with the Indemnity Escrow Fund and the Purchase Price Adjustment Escrow Fund, the “Escrow Fund”) designated by the Escrow Agent an amount equal to $3,800,000.00 (the “Special Escrow Amount” and together with the Indemnity Escrow Amount and the Purchase Price Adjustment Escrow Amount, the “Escrow Amount”), which will be available solely to pay such amounts as set forth in the Special Indemnity Side Letter, and will be released on such terms as set forth in the Special Indemnity Side Letter.
(d) Any fees owed to the Escrow Agent pursuant to the Escrow Agreement shall be paid by the Acquiror.
(e) The Escrow Fund shall be held as a trust fund and shall not be required subject to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings Lien of any kind creditor of any party, and shall have no responsibility be held and disbursed solely for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting purposes and in accordance with any written instructions given to it hereunder the terms of this Agreement, the Special Indemnity Side Letter, the Litigation Side Letter and believed by it to have been signed by the proper partiesEscrow Agreement.
Appears in 1 contract
Escrow. (a) This Agreement shall serve as escrow instructions to the Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in and an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination executed copy of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable deposited with the Escrow Agent. Seller and Purchaser hereby agree to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by hold the Escrow Agent to Purchaser. In the event the Closing occursharmless for any loss of any deposited funds, including the Xxxxxxx Money Deposit and all interest accrued thereon will be released Money, due to Sellerthe failure of the financial institution in which such funds are deposited, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable in any way to any party Seller or Purchaser for any act or omissionaction taken in good faith pursuant to the terms hereof; provided, except for bad faithhowever, gross negligence or willful misconduct, and that nothing herein shall release the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claimsfor its fraud, damages, losses willful misconduct or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual conveniencegross negligence. In the event of a termination of this Agreement or a default under this Agreement, the Xxxxxxx Money shall be delivered or disbursed by the Escrow Agent receives as provided in this Agreement. If either party shall declare the other party in default under this Agreement and shall make demand (a "Demand") upon the Escrow Agent for possession of the Xxxxxxx Money, said party must provide the other party with a copy of such Demand made upon the Escrow Agent. Except as otherwise expressly provided in this Agreement, the Escrow Agent shall not disburse the Xxxxxxx Money until the demanding party delivers to the Escrow Agent evidence (e.g., returned receipt from U.S. Postal Service) of the other party's receipt of the Demand and the Escrow Agent has not received written notice objection to such Demand from the other party within five (5) business days following said party's receipt of a dispute between the copy of such Demand. Except as otherwise expressly provided in this Agreement, if any objection is so received or if any conflicting Demand shall be timely made upon the Escrow Agent, the Escrow Agent shall not disburse any part of the Xxxxxxx Money and shall await settlement of the controversy or deposit the Xxxxxxx Money with the court in the county where the Premises is located, in an interpleader action or otherwise for the purpose of having the respective rights of the parties adjudicated. Upon making such deposit or upon institution of such interpleader action or other actions, the Escrow Agent shall be fully relieved and discharged from all further obligations hereunder with respect to the Xxxxxxx Money Deposit and Money. Provided that the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent in good faith executes the terms hereof, it shall not be bound to release indemnified by the non-prevailing party in any dispute over the Xxxxxxx Money from and deliver against its costs, expenses and liabilities (including reasonable attorney's fees) in connection with any proceeding in which the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. may become a party or otherwise involved by reason of the Escrow Agent shall have holding the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it Xxxxxxx Money in accordance with the advice terms hereof. Notwithstanding anything to the contrary contained in this Section 7.2 or elsewhere in this Agreement, whenever in this Agreement it is provided for the Xxxxxxx Money to be returned to Purchaser without the consent or joinder of such counsel.
(c) Seller being required and notwithstanding any contrary instructions Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Fundsreceive from Seller, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required hereby agrees to institute legal proceedings of any kind so return the Xxxxxxx Money to Purchaser immediately upon written request therefor by Purchaser, and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this AgreementSeller, by its execution below hereby consents thereto. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.CONDITIONS TO CLOSING
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust, Inc.)
Escrow. AIC Title Service, LLC (aAIC) Escrow Agent whose primary address is 6350 X. Xxxx Oklahoma City, OK 00000 000-000-0000, Fax 000-000-0000 Contact: Xxxxxxx Xxxxxxxx, Email: xxxxxxxxx@xxxxxxxx.xxx shall act as the escrow agent for this transaction with all monies, consideration and documentation being managed by AIC. The escrow company will hold coordinate the Xxxxxxx Money Deposit in escrow in an interest-bearing account exchange of the type generally used purchase funds, any Title Search requested by Escrow Agent the Buyer, the FAA Aircraft Registry on behalf of the Buyer, shall provide the FAA with the Xxxx of Sale on behalf of the Buyer and filing the FAA Application for Registration on behalf of the holding Buyer. The Buyer’s and Seller’s signature on all forms shall be submitted electronically to AIC by way of escrow funds until their “eSign” technology. It is agreed that within three (3) business days, after the earlier of (i) the Closing, or (ii) the termination execution of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement agreement, an escrow account will be established and a deposit of Ten Thousand Dollars ($10,000.00 xxxxxxx money) will be made by the end Buyer upon the establishment of the Evaluation Period, escrow account with the Xxxxxxx Money Deposit shall escrow agent (AIC Title Services) and the escrow account will be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration fully funded within eleven (11) business days of the Evaluation Period, establishment of the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price escrow account in the amount of the Xxxxxxx Money Deposittotal purchase price, else the Seller shall have the option of cancelling this agreement. The escrow account shall be at AIC Title Services. All funds, including the deposit, and the following documents pertaining to this transaction, shall be transmitted and deposited with the interest. In all instances, Escrow Agent shall escrow agent not release less than two days prior to the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release date of the Xxxxxxx Money Deposit, provided that, if pre-purchase inspection: (a) FAA Xxxx of Sale for the Closing occurs, Aircraft executed by the Xxxxxxx Money Deposit Seller to the Buyer; and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) FAA Application for Registration of the Aircraft for the Buyer. The fees for the Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, Service and the parties agree to indemnify Title Search, a total of $650.00 shall be split evenly between Buyer and Seller, resulting in a cost of $325.00 for each party. Three copies of the Xxxx of Sale, a copy for the seller, the buyer and the FAA using FAA Form 8050-2 shall be held in Escrow Agent and hold shall be placed into Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect no less than two (2) business days prior to the Xxxxxxx Money Deposit and delivery of the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility aircraft for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiespre-purchase inspection.
Appears in 1 contract
Samples: Aircraft Purchase Agreement
Escrow. An escrow account in the amount of $200,000, funded from the cash proceeds payable to Seller hereunder, shall be established at closing with Xxxxxx Xxxxxxx, Esq. as escrow agent. The escrow account shall be maintained until the tenth (a10th) Escrow Agent will hold day after the Xxxxxxx Money Deposit in escrow in an interest-bearing account delivery of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of final, audited Closing Balance Sheet provided in Section 2.01(d) hereof. All (i) accounts payable, accrued expenses or other liabilities in the Closing, or aggregate of Seller in excess of $500,000 evidenced thereon (to the extent not previously credited at Closing pursuant to the Seller's Certificate of Closing Credits); (ii) any other accounts payable or accrued expenses arising after the termination Closing Date that, in the ordinary course of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Periodbusiness, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated should have arisen prior to the expiration Closing Date; (iii) the amount set forth on the Closing Balance Sheet as due from related parties, net of amounts due to related parties; and (iv) the cost of Xxxxxxx Xxxxxxxxx' education at Huron University through August 30, 1997, or if any of the Evaluation Periodforegoing has been paid by Buyer by such date, reimbursed to Buyer from the Xxxxxxx Money Deposit and all interest accrued thereon will escrow account. Amounts paid from the escrow account shall be returned released by Xxxxxx Xxxxxxx, Esq. to Buyer solely on the Escrow Agent written instructions of Buyer. Amounts remaining in the escrow account after payment provided herein shall be remitted to PurchaserSeller within ten (10) days after delivery of the Closing Balance Sheet. In the event the escrow account is insufficient to pay the amounts set forth herein, Seller shall promptly pay to Buyer any shortfall necessary to meet Seller's obligations pursuant to this Section within ten (10) days after delivery of the Closing occurs, Balance Sheet. Buyer's rights to reimbursement from the Xxxxxxx Money Deposit and all interest accrued thereon will escrow shall be released to Sellerin addition to, and Purchaser shall receive a credit against the Purchase Price not in the amount of the Xxxxxxx Money Depositlimitation of, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000rights under Article XI.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Samples: Asset Purchase Agreement (Whitman Education Group Inc)
Escrow. (a) To provide for the indemnity obligations set forth in Article VII, the Escrow Agent will hold the Xxxxxxx Money Deposit Shares shall be deposited in escrow in an interest-bearing account of (the type generally used by “Escrow”). The Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit Shares shall be non-refundable subject to Purchaser, but shall the terms and conditions provided herein and the Escrow Agreement to be credited against the Purchase Price entered into at the Closing. All interest earned on Closing between Parent, Key, F. Dxxx Xxxxx Irrevocable Trust under Agreement dated August 31, 2004 (the “Cxxxx Trust”), Dxxxx Xxxxxxx Money Deposit shall be paid and Continental Stock Transfer and Trust Company (“Continental”) (or another escrow agent acceptable to the party entitled to parties), as Escrow Agent, in substantially the Xxxxxxx Money Deposit. In form annexed hereto as Exhibit E (the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the “Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000Agreement”).
(b) On the date that is twelve (12) months and one day subsequent to the Closing Date, only 2,500,000 Escrow Shares, shall be retained in Escrow and the excess Escrow Shares shall be released from the Escrow and the Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify deliver such excess Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect Shares to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS")Members, Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it pro rata among them in accordance with the advice distribution of such counsel.
the Cay Merger Consideration as set forth on Schedule 1.6(a). On the date that is eighteen (c18) months subsequent to the Closing Date, pursuant to Article VII, the indemnity obligations of the Members shall terminate under this Agreement and any shares remaining in the Escrow Account shall be released from the Escrow and the Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect deliver the Escrow Shares to the Escrowed FundsMembers, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting pro rata among them in accordance with the distribution of the Merger Consideration as set forth on Schedule 1.6(a). Any Escrow Shares that are deposited in Escrow and are used to satisfy an indemnification obligation pursuant to Article VII shall be removed from the Escrow, shall cease to be Escrowed Shares and shall be returned to Key, at such time such shares shall be retired by Key. Notwithstanding anything set forth in this Section 1.13(d), the indemnification provisions of Article VII, and specifically Section 7.4, and the Escrow Agreement shall control any written instructions given releases of Escrow Shares from Escrow to it hereunder satisfy the Article VII indemnification obligations and believed by it to have been signed by the proper partiesgeneral operation and maintenance of such account.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Key Hospitality Acquisition CORP)
Escrow. (a) Except as set forth in Section 10.4(b) below, the indemnification obligations of Seller will be satisfied first from the Seller Stock Escrow Agent Fund and then from the Buyer Stock Escrow Fund; provided that Seller will hold remain responsible for any liability (including the Xxxxxxx Money Deposit costs and expenses of defense and the cost of any judgment or settlement) in escrow in an interest-bearing account excess of the type generally used assets that are available in the Seller Stock Escrow Fund and the Buyer Stock Escrow Fund (collectively, the “Stock Escrow Fund”). The availability of the Stock Escrow Fund will not affect Buyer’s rights and remedies under this Article X.
(b) Notwithstanding Section 10.4(a) above, Seller’s obligations under the post-closing adjustment described in Section 2.6 shall first be satisfied by transfer of monies in the Cash Escrow Agent Fund to Buyer. The Cash Escrow Fund shall not be available to satisfy any other Buyer Losses. If the funds available in the Cash Escrow Fund are not sufficient to satisfy Seller’s obligations under Section 2.6, then such obligations shall be satisfied first from the Seller Stock Escrow Fund and then from the Buyer Stock Escrow Fund; and Seller will remain responsible for any liability (including the holding costs and expenses of escrow funds until defense and the cost of any judgment or settlement) arising from Seller’s obligations under Section 2.6 in excess of the assets are available in the Stock Escrow Fund.
(c) Any Buyer Claim against the Cash Escrow Fund must be made on or before the earlier of (i) thirty (30) days following the Closingfiling of Buyer’s consolidated financial statements with the SEC which include the Company’s revenues for the quarter ended December 31, 2005 or (ii) ninety (90) days after the termination Closing Date (the “Cash Escrow Termination Date”). Any Buyer Claim against the Stock Escrow Fund must be made on or before the date that is eighteen (18) months after the Closing (the “Stock Escrow Termination Date”). Notwithstanding the foregoing, a portion of this Agreement the Cash Escrow Fund or the Stock Escrow Fund shall be required to remain in escrow after the Cash Escrow Termination Date or Stock Escrow Termination Date, as applicable, in an amount sufficient to satisfy any unsatisfied claims specified in a written notice tendered to the escrow agent in accordance with the terms of the Escrow Agreement, prior to the Cash Escrow Termination Date or Stock Escrow Termination Date, as applicable (in which case any right hereunderrepresentation or warranty to which such claim applies shall continue to survive until such time as the claim is settled or a final award or judgment has been issued with respect thereto).
(d) Subject to Section 10.4(c), Seller shall be entitled to receive, upon the Cash Escrow Termination Date or Stock Escrow Termination Date, as applicable, any Cash Escrow Amount, Seller Stock Escrow Amount or Buyer Stock Escrow Amount, as applicable, not applied by Buyer to the payment of a claim in a manner consistent with this Article X, the Escrow Agreement. As a condition to the release of the balance of the Cash Escrow Fund to Seller after the Cash Escrow Termination Date, however, Seller shall deposit into the Seller Stock Escrow Account all of Seller’s remaining Shares unless the Buyer Option has already been exercised by Buyer by such time.
(e) In the event that a claim for indemnification is paid out of the Seller Stock Escrow Fund, such shares of Company Common Stock shall be valued for the purpose of discharging such indemnification liability at $2,333.33 per share. In the event Purchaser has not terminated this Agreement by the end that a claim for indemnification is paid out of the Evaluation PeriodBuyer Stock Escrow Fund, the Xxxxxxx Money Deposit such shares of Buyer Common Stock shall be non-refundable to Purchaser, but shall be credited against valued for the Purchase Price purpose of discharging such indemnification liability at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration higher of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto Buyer Common Stock Price or at Seller’s option, (ii) deposit the Escrowed Funds with closing price of Buyer’s Common Stock on the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have Nasdaq Capital Market on the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice date of such counselpayment if such Closing price exceeds the Buyer Common Stock price.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. (a) Escrow Agent will hold At the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of Effective Time, Parent shall deposit (i) the ClosingIndemnification Escrow Amount with U.S. Bank, or National Association (the “Escrow Agent”) for deposit into an escrow account (the “Indemnification Escrow Account”), and (ii) the termination of this Agreement in accordance Purchase Price Adjustment Escrow AmericasActive:12666190.14 Amount with any right hereunderthe Escrow Agent for deposit into an escrow account (the “Purchase Price Adjustment Escrow Account”). In the event Purchaser has not terminated this Agreement The Escrow Funds shall be governed by the end terms of the Evaluation Periodan escrow agreement to be entered into by and among Parent, the Xxxxxxx Money Deposit Securityholders’ Representative and the Escrow Agent, such escrow agreement to be substantially in the form attached hereto as Exhibit H (the “Escrow Agreement”). Subject to Section 10.6, the Indemnification Escrow Funds shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned held in escrow by the Escrow Agent to Purchaser. In until the event date that is twelve (12) months following the Closing occursDate (the “Indemnification Escrow Expiration Date”), and shall be available to settle certain contingencies and claims as provided in Section 3.5(e) and Article X. Each Indemnitor’s portion of any amounts contained in the Xxxxxxx Money Deposit and all interest accrued thereon Indemnification Escrow Funds which are not paid or set aside for the satisfaction of such contingencies or claims will be released determined and distributable to Sellerthe Indemnitors in accordance with Sections 3.1, 3.2 and Purchaser shall receive a credit against 10.6(c) and the Escrow Agreement. The Purchase Price Adjustment Escrow Funds shall be held in escrow by the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release until released in accordance with Section 3.5(e) and the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000Agreement.
(b) All parties hereto agree for all Tax purposes that (i) the right of the holders of Company Shares to the Escrow Agent Amount shall not be liable to treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any party corresponding provision of foreign, state or local law, as appropriate and (ii) Parent shall be treated as the owner of the Escrow Amount solely for any act or omission, except for bad faith, gross negligence or willful misconductTax purposes, and all interest and earnings earned from the parties agree investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to indemnify Escrow Agent Parent pursuant to Section 468B(g) of the Code and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewithProposed Treasury Regulations Section 1.468B-8. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In Any portion of the event Escrow Agent receives written notice of a dispute between the parties proceeds payable with respect to any In the Xxxxxxx Money Deposit Vested Option that is not a Non-Withholding Option and held in the interest earned thereon (Escrow Funds will be subject to withholding for income and employment Taxes at such time as the "ESCROWED FUNDS"), Escrow Agent shall not be bound amounts are paid to release and deliver the Escrowed Funds to either party but may either (i) continue to hold holder of such In the Escrowed Funds until otherwise directed in a writing signed by all Money Vested Options. All parties hereto or (ii) deposit the Escrowed Funds shall file all Tax Returns consistent with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselforegoing.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Samples: Merger Agreement (Hub Group, Inc.)
Escrow. (a) Notwithstanding the foregoing provisions of this Article I, on the Closing Date, an amount of cash equal to the Initial Escrow Amount shall be delivered by Acquiror to the Escrow Agent will hold the Xxxxxxx Money Deposit to be held in escrow in an interest-bearing account accordance with the terms of the type generally used by Escrow Agent Agreement, subject to the terms of Section 9.4, to serve as the sole and exclusive source of payment and remedy for the holding of escrow funds until the earlier of (iany claim for Damages for which any Acquiror Indemnitee is entitled to indemnification pursuant to Section 9.2(a) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunderhereof. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit The Escrow Amount shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned held by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice terms of such counsel.
an Escrow Agreement in the form attached hereto as Annex C hereto (cthe "Escrow Agreement"). On the date that is twelve (12) months and one day after the Closing Date, each of Acquiror and the Holder Representative shall execute joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse a portion of the Escrow Amount such that the Escrow Amount after such disbursement shall not be required equal to defend (x) $5,000,000, plus (y) an amount sufficient to satisfy any legal proceeding which may be instituted against it claims for indemnification submitted prior to such date in accordance with respect to the Escrowed Funds, the Property or the subject matter terms of this Agreement unless requested and the Escrow Agreement to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of be held in escrow until such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall claims have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting been resolved in accordance with the terms hereof (the "Initial Retained Amount"), to the Holders (pro rata in accordance with their respective Applicable Percentages). For the avoidance of doubt, the Initial Retained Amount shall only be available for claims for Damages submitted prior to the date that is twelve (12) months after the Closing Date that have not been resolved as of such date. After the date that is twelve (12) months after the Closing Date, the Acquiror Indemnitee may only submit claims for indemnification for Tax Damages. Acquiror and the Holder Representative further agree to jointly instruct the Escrow Agent on the date that is thirty-six (36) months after the Closing Date to disburse a portion of the Escrow Amount equal to (x) the remaining Escrow Amount, less (y) an amount sufficient to satisfy any written instructions given claims for indemnification for Tax Damages submitted prior to it hereunder such date in accordance with the terms of this Agreement and believed by it the Escrow Agreement to be held in escrow until such claims have been signed resolved in accordance with the terms hereof, less (z) any portion of the Initial Retained Amount that remains in escrow, to the Holders (pro rata in accordance with their respective Applicable Percentages). In no event shall the Holder Representative have any liability under this Section 1.4, nor shall any Holder have any liability under this Section 1.4 in excess of such Holder's Applicable Percentage of the Escrow Amount. Notwithstanding the foregoing, any distributions to any holders of Employee Options pursuant to this Section 1.4 shall be net of the amount of any taxes required to be withheld from such distributions under applicable law, and the amounts so withheld shall be paid over to the Surviving Corporation for payment by the proper partiesSurviving Corporation to the applicable Governmental Authority as required by law. In no event shall any Acquiror Indemnitee be entitled to payment pursuant to this Section 1.4 of any amount in excess of the Escrow Amount, plus any interest earned thereon.
Appears in 1 contract
Samples: Merger Agreement (Usa Interactive)
Escrow. (a) Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) At the Closing, the Purchaser shall hold, or shall cause to be held, such number of shares of Class A Shares of the Merger Consideration equal to the quotient of: (iiA) $40,000,000 and (B) the termination Signing Date Share Price (the “Escrow Shares”) in escrow pursuant to the terms of this that certain Computershare Escrow Agreement by and among the Founders, the Purchaser and the escrow agent in the form attached hereto as Exhibit B (the “Computershare Escrow Agreement”).
(b) The Escrow Shares shall remain in escrow until released to the Stockholders in accordance with any right hereunderthe rules set forth in the following provisions of this Section 1.04.
(c) If Xx. In Xxxxxxxxx remains employed by Purchaser on the event Purchaser has not terminated this Agreement by the end fifth anniversary of the Evaluation PeriodClosing Date, the Xxxxxxx Money Deposit all Escrow Shares shall be non-refundable released to Purchaserthe Stockholders promptly thereafter.
(d) If Xx. Xxxxxxxxx’x employment with Purchaser is terminated by Purchaser prior to the fifth anniversary of the Closing Date for Cause, but all Escrow Shares shall be credited against released to the Purchase Price at Stockholders promptly following the Closingtenth anniversary of the Closing Date.
(e) If Xx. All interest earned on Xxxxxxxxx voluntarily terminates his employment with Purchaser prior to the Xxxxxxx Money Deposit fifth anniversary of the Closing Date other than for Good Reason, all Escrow Shares shall be paid released to the party entitled to Stockholders promptly following the Xxxxxxx Money Deposittenth anniversary of the Closing Date.
(f) If Xx. In the event this Agreement Xxxxxxxxx’x employment with Purchaser is terminated prior to the expiration fifth anniversary of the Evaluation PeriodClosing Date (i) by Purchaser other than for Cause, the Xxxxxxx Money Deposit and (ii) by Xx. Xxxxxxxxx for Good Reason or (iii) as a result of Xx. Xxxxxxxxx’x death or Disability, all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will Shares shall be released to Sellerthe Stockholders promptly following the fifth anniversary of the Closing Date.
(g) All Escrow Shares shall be released to the Stockholders promptly upon the occurrence of a Change of Control.
(h) For purposes of this Section 1.04, the terms “Cause”, “Change of Control”, “Good Reason”, and “Disability” shall have the respective meanings ascribed to them in Xx. Xxxxxxxxx’x Employment Agreement.
(i) The Purchaser shall receive a credit against the Purchase Price in the amount and Xx. Xxxxxxxxx, as representative of the Xxxxxxx Money Deposit, Stockholders in connection with the interest. In all instancesComputershare Escrow Agreement, Escrow Agent shall not release agree to provide any joint written notice required to be delivered to the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser escrow agent in order to release the Xxxxxxx Money Deposit and has given Escrow Shares pursuant to the other party five (5) Business Days to dispute, or consent to, the release terms of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000this Section 1.04.
(bj) The Escrow Agent shall not Shares may also be liable used to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and satisfy the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In indemnification obligations of the event Escrow Agent receives written notice of a dispute between the parties with respect Founders pursuant to the Xxxxxxx Money Deposit and terms of the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselIndemnification Agreement.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. As of the Closing Date, Buyer will deposit one million (a1,000,000) Escrow Agent will hold shares of Buyer's common stock (as adjusted from time to time in accordance herewith, the Xxxxxxx Money Deposit in escrow "Shares") in an interest-bearing escrow account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDSEscrow"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have hold the right to consult with separate counsel Shares as the agent of its own choosing (if it deems such consultation advisable) Buyer and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect subject to the Escrowed Funds, the Property or the subject matter terms of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall hold the Shares until it receives a written notice, requesting that a distribution of some or all of the Shares be fully protected made, whereupon Escrow Agent shall make distributions from the Escrow under the following circumstances:
(i) Fifteen days after receipt of a notice from Buyer that Buyer has assumed Additional Liabilities, Escrow Agent shall immediately distribute to Buyer that number of Shares (valued for this purpose at $1.50 per share) equal to such Additional Liabilities, unless during such fifteen day period, the Escrow Agent receives written notice from Seller that such notice from Buyer is incorrect (a "Dispute Notice");
(ii) Fifteen days after receipt of a notice from Buyer that Seller has incurred Expense Overruns, Escrow Agent shall immediately distribute to Buyer that number of the Shares (valued for this purpose at $1.50 per share) equal to the amount of the Expense Overruns, unless during such fifteen day period, the Escrow Agent receives a Dispute Notice from Seller;
(iii) Fifteen days after receipt of a notice from Buyer requesting Escrow Agent to make a distribution to Buyer as an indemnified party under Article IX or X of the Asset Purchase Agreement, Agent shall immediately distribute to Buyer that number of the Shares (valued for this purpose at $1.50 per share) equal to the value of such indemnification amount, unless during such fifteen day period, the Escrow Agent receives a Dispute Notice from Seller;
(iv) Promptly after receipt of a joint direction from Buyer and Seller, Escrow Agent shall transfer the Shares as prescribed in acting said joint direction.
(v) If a Dispute Notice is timely received by Escrow Agent, Buyer and Seller shall undertake to obtain as promptly as possible a final resolution of such dispute (a "Dispute"). Upon a final resolution of such Dispute, Buyer and Seller shall execute a joint direction that Escrow Agent transfer the Shares in accordance with such final resolution. Absent such joint direction, Escrow Agent shall continue to hold the Shares until it receives from either Buyer or Seller a certified copy of an order or judgment of a court of competent jurisdiction determining the disposition to be made of the Shares, together with a certificate from such party that such party also has provided the other party with a certified copy of such order or judgment. Upon receipt thereof, the Escrow Agent shall distribute the Shares in accordance with such order or judgment. Any notice provided by Buyer to Escrow Agent under Sections 1(i), (ii) or (iii) shall be provided simultaneously to Seller, and any written instructions given Dispute Notice provided by Seller to it hereunder and believed by it Escrow Agent under Sections 1(i), (ii) or (iii) shall be provided simultaneously to have been signed by the proper partiesBuyer.
Appears in 1 contract
Samples: Asset Purchase Agreement (Worldport Communications Inc)
Escrow. (a) If any Parent Indemnitee is entitled to indemnification under Section 9.1, such Parent Indemnitee shall first recover Losses from the Escrow Agent will hold to the Xxxxxxx Money Deposit extent of remaining funds in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunderthe Escrow Agreement, and the Escrow Agent shall maintain a record of the recovered Losses allocable to each Holder as set forth in the Escrow Agreement. In Pursuant to the event Purchaser has not terminated terms of the Escrow Agreement, the Escrow Agent shall promptly release (subject to the terms of the Escrow Agreement and this Agreement relating to existing indemnification claims, which shall not be released until finally determined in accordance with the Escrow Agreement and this Agreement) upon the third (3rd) anniversary of the Effective Time (and any interest or dividends earned thereon pursuant to the Escrow Agreement), to the Holders’ Representative for distribution to the Holders (including for such purpose holders of In-the-Money Options) the balance of the Escrow Fund, and following such anniversary the Escrow Threshold shall be deemed to be zero dollars ($0). If, at any time (x) after the date on which the first National Mortgage Business Settlement Statement delivered by Parent becomes final pursuant Section 6.6(b) and any distribution from the Escrow Fund required thereby has been made, and (y) during the term of the Escrow, the Escrow Fund (reduced for any then outstanding claims for indemnification made by any Parent Indemnitee) exceeds the Escrow Threshold, Parent shall, if requested by the end of Holders’ Representative, jointly with the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by Holders’ Representative cause the Escrow Agent to Purchaser. In distribute from the event Escrow Fund up to that amount which would cause the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released Escrow Fund balance to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five equal (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party after reduction for any act or omission, except then outstanding claims for bad faith, gross negligence or willful misconduct, and indemnification made by any Parent Indemnitee) the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising Threshold in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon effect at such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counseltime.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. 4.1 The Escrow Account shall be operated, and the Escrow Sum and interest accruing on it (or any part of it) shall be applied, in accordance with this Clause 4 and the Escrow Agreement.
4.2 [ ]*
4.3 [ ]*
4.4 For the purposes of Clause 4.3(c), a Claim shall be regarded as finally determined if:
(a) Escrow Agent will hold the Xxxxxxx Money Deposit Claim is withdrawn;
(b) the Seller and the Purchaser so agree in escrow writing; or
(c) it is an Uncontested Refund Claim; or * CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(d) a competent court or arbitral tribunal (as the case may be) has awarded judgment or granted an award (as appropriate) in an interest-bearing account respect of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the ClosingClaim and, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Periodwhere relevant, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All period for lodging an appeal has expired without an appeal having been lodged.
4.5 Any interest earned which accrues on the Xxxxxxx Money Deposit Escrow Sum (or any part of it) while in the Escrow Account shall follow the principal amount and shall be paid to the party entitled Seller or the Purchaser (as the case may be) at the same time as payment of the corresponding principal.
4.6 Amounts to be paid to the Xxxxxxx Money Deposit. In Purchaser from the event this Agreement Escrow Account shall, if necessary, be converted into EUR at the Exchange Rate applicable on the Business Day immediately preceding the date the relevant amount is terminated prior paid to the expiration Purchaser, other than in respect of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned an Uncontested Refund Claim which (if not paid by the Escrow Agent Target Company in EUR) shall be converted to Purchaser. In EUR at the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above Exchange Rate applicable on the Closing Date. date the relevant refund was paid by the Target Company in question.
4.7 The Seller and the Purchaser represents that its tax identification numbershall:
(a) as soon as reasonably practicable after the date of this Agreement, for purposes of reporting execute the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.Escrow Agreement; and
(b) after Closing promptly give or join in giving all such instructions as are necessary to procure the operation of the Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconductAccount, and application of the parties agree to indemnify Escrow Agent Sum and hold Escrow Agent harmless from interest accruing on it (or any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice part of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"it), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice provisions of such counselthis Clause 4.7.
(c) 4.8 The fees and expenses of the Escrow Agent shall not be required to defend (including any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent taxes) shall be fully protected in acting in accordance with any written instructions given to it hereunder borne equally between the Purchaser and believed by it to have been signed by the proper partiesSeller.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (National Bank of Greece Sa)
Escrow. 23.1 Escrow Agent shall hold the Downpayment, together with all interest earned thereon, in its interest bearing escrow account, or the Downpayment Letter of Credit, as the case may be, in accordance with the following:
(a) Escrow Agent will shall hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the ClosingDownpayment, or (ii) the termination of this Agreement in accordance together with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All all interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Periodthereon, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the in Escrow Agent to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to SellerAgent's escrow account at XX Xxxxxx Xxxxx, and Purchaser shall receive a credit against cause the Purchase Price in the amount Downpayment to earn interest at XX Xxxxxx Chase's then prevailing insured money market rates on deposits of the Xxxxxxx Money Deposit, with the interestsimilar size. In all instances, Escrow Agent shall not release have no liability for any fluctuations in the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested interest rate paid by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above XX Xxxxxx Xxxxx on the Closing Date. Purchaser represents that its tax identification numberDownpayment, for purposes of reporting the interest earnings, and is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000not a guarantor thereof.
(b) If, on or before the date which is thirty (30) days prior to expiration of the Downpayment Letter of Credit, SLGOP has not delivered an extension thereof or a replacement letter of credit in the form of the Downpayment Letter of Credit, Escrow Agent shall be entitled to deliver the Downpayment Letter of Credit to Transferor who shall be entitled to draw on the same, provided that all proceeds thereof shall be paid by the issuing bank by Wire Transferred Funds to Escrow Agent's account described in clause (a) above, and thereafter such proceeds shall be held as the Downpayment in accordance with the terms of this Agreement.
23.1.2 If Escrow Agent receives a written notice signed by both Transferor and SLGOP stating that the Closing has occurred and that Transferor is entitled to receive the Downpayment or that SLGOP is entitled to receive the Downpayment Letter of Credit, as the case may be, Escrow Agent shall deliver the Downpayment, together with the interest earned thereon to Transferor, or the Downpayment Letter of Credit to SLGOP, as the case may be. If Escrow Agent receives a written notice signed by both Transferor and SLGOP that this Agreement has been terminated or canceled, Escrow Agent shall deliver the Downpayment, together with the interest thereon, or the Downpayment Letter of Credit, as the case may be, as directed therein.
23.1.3 If Escrow Agent receives a written request signed by SLGOP or Transferor (the "Noticing Party") stating that this Agreement has been canceled or terminated and that the Noticing Party is entitled to the Downpayment, or the Downpayment Letter of Credit, as the case may be, or that the other party hereto (the "Non-Noticing Party") has defaulted in the performance of its obligations hereunder, Escrow Agent shall deliver (by hand or nationally recognized overnight courier) a copy of such request to the Non-Noticing Party. The Non-Noticing Party shall have the right to object to such request for the Downpayment by written notice of objection delivered to and received by Escrow Agent ten (10) Business Days after the date of Escrow Agent's mailing of such copy to the Non-Noticing Party, but not thereafter. If Escrow Agent shall not have so received a written notice of objection from the Non-Noticing Party, Escrow Agent shall deliver the Downpayment, together with the interest earned thereon, or the Downpayment Letter of Credit, as the case may be, to the Noticing Party. If Escrow Agent shall have received a written notice of objection within the time herein prescribed, Escrow Agent shall refuse to comply with any requests or demands on it and shall continue to hold the Downpayment, together with any interest earned thereon, or the Downpayment Letter of Credit, as the case may be, until Escrow Agent receives either (a) a written notice signed by both Transferor and SLGOP stating who is entitled to the Downpayment (and interest) or the Downpayment Letter of Credit, as the case may be, or (b) a final order of a court of competent jurisdiction directing disbursement of the Downpayment (and interest) or delivery of the Downpayment Letter of Credit, as the case may be, in a specific manner, in either of which events Escrow Agent shall then disburse the Downpayment, together with the interest earned thereon, or deliver the Downpayment Letter of Credit, as the case may be, in accordance with such notice or order. Escrow Agent shall not be or become liable in any way or to any person for its refusal to comply with any such requests or demands until and unless it has received a direction of the nature described in clause (a) or (b) above.
23.2 Any notice to Escrow Agent shall be sufficient only if received by Escrow Agent within the applicable time period set forth herein. All mailings and notices from Escrow Agent to Transferor and/or SLGOP, or from Transferor and/or SLGOP to Escrow Agent, provided for in this Section 23 shall be addressed to the party to receive such notice at its notice address set forth in Section 14 above (with copies to be similarly sent to the additional persons therein indicated), but the provisions of Section 14 relating to the manner of giving notices and the effective dates thereof shall have no application to the provisions of this Section 23.
23.3 Notwithstanding the foregoing, if Escrow Agent shall have received a written notice of objection as provided for in Section 23.1.3 above within the time therein prescribed, or shall have received at any time before actual disbursement of the Downpayment or delivery of the Downpayment Letter of Credit, as the case may be, a written notice signed by either Transferor or SLGOP disputing entitlement to the Downpayment or the Downpayment Letter of Credit, as the case may be, or shall otherwise believe in good faith at any time that a disagreement or dispute has arisen between the parties hereto over entitlement to the Downpayment or the Downpayment Letter of Credit, as the case may be (whether or not litigation has been instituted), Escrow Agent shall have the right, upon written notice to both Transferor and SLGOP, (a) to deposit the Downpayment, together with the interest earned thereon, or the Downpayment Letter of Credit, as the case may be, with the Clerk of the Court in which any litigation is pending and/or (b) to take such reasonable affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Agent, including, without limitation, the depositing of the Downpayment, together with the interest earned thereon, with a court of competent jurisdiction and the commencement of an action for interpleader, the costs thereof to be borne by whichever of Transferor or SLGOP is the losing party, and thereupon Escrow Agent shall be released of and from all liability hereunder except for any previous gross negligence or willful misconduct. If Escrow Agent is in possession of a Downpayment Letter of Credit and has elected to terminate its duties as Escrow Agent hereunder during the pendency of a dispute between the parties, it shall deliver the Downpayment Letter of Credit to Tr ansferor who shall be entitled to draw on the same, provided that all proceeds shall be paid by Wire Transferred Funds to Escrow Agent's account described in Section 23.1.1(a), and such proceeds may thereafter be deposited with a court of competent jurisdiction, as set forth above.
23.4 Escrow Agent is acting hereunder without charge as an accommodation to SLGOP and Transferor, it being understood and agreed that Escrow Agent shall not be liable to any party for any error in judgment or any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered done or omitted by it in accordance with the advice good faith or pursuant to court order, or for any mistake of such counsel.
(c) fact or law. Escrow Agent shall not incur any liability in acting upon any document or instrument believed thereby to be required genuine. Escrow Agent is hereby released and exculpated from all liability hereunder, except only for willful misconduct or gross negligence. Escrow Agent may assume that any person purporting to defend give it any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter notice on behalf of this Agreement unless requested any party has been authorized to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defenseso. Escrow Agent shall not be required liable for, and SLGOP and Transferor hereby jointly and severally agree to institute legal proceedings indemnify Escrow Agent against, any loss, liability or expense, including reasonable attorney's fees (paid to retained attorneys) arising out of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with dispute under this Agreement. Escrow Agent shall be fully protected in acting in accordance with , including the cost and expense of defending itself against any written instructions given to it hereunder and believed by it to have been signed by the proper partiesclaim arising hereunder.
Appears in 1 contract
Samples: Contribution and Purchase and Sale Agreement (Sl Green Realty Corp)
Escrow. (a) Escrow Agent will hold At the Xxxxxxx Money Deposit in escrow in an interest-bearing account of Effective Time, Parent shall deliver or cause the type generally used by Escrow Agent for the holding of escrow funds until the earlier of Surviving Corporation to deliver (i) the ClosingEscrow Consideration and the Management Carve-Out Escrow Consideration (collectively, or the “Escrow Amount”) and (ii) the termination of this Agreement in accordance with any right hereunder. In Representative Fund Consideration and the event Purchaser has not terminated this Agreement by Management Carve-Out Representative Fund Consideration (collectively, the end “Representative Fund Amount”) to JPMorgan Chase Bank, National Association, as escrow agent (the “Escrow Agent”) pursuant to the provisions of the Evaluation Periodescrow agreement in the form attached as Exhibit B hereto, the Xxxxxxx Money Deposit shall be non-refundable subject to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid any amendments to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned such form requested by the Escrow Agent and mutually agreed to Purchaserby Parent and the Representative (the “Escrow Agreement”). In the event The Escrow Agreement shall be executed at the Closing occursby and among Parent, the Xxxxxxx Money Deposit Representative, on behalf of the Indemnifying Securityholders, and the Escrow Agent, and shall provide Parent with recourse against the shares of Parent Common Stock held in escrow as the Escrow Amount by the Escrow Agent (the “Escrow Shares”) with respect to any and all interest accrued thereon will Parent Claims made under Section 14, subject to the terms and conditions set forth in the Escrow Agreement and in this Agreement. The Escrow Shares (or any portion thereof) shall be released distributed to Sellerthe Indemnifying Securityholders and Parent at the times, and Purchaser shall receive a credit against upon the Purchase Price terms and conditions, set forth in the amount of Escrow Agreement. The escrow described above shall commence at the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000Effective Time.
(b) On the 18-month anniversary of the Closing Date (the “First Expiration Date,” and the period commencing at the Effective Time and ending on the First Expiration Date shall be referred to as the “First Escrow Agent shall not be liable to any party Period”), if the number of Escrow Shares then in escrow exceeds two- thirds of the number of Escrow Shares deposited into escrow at the time of Closing, as adjusted for any act stock split, dividend or omissionthe like (the “Two-Thirds Escrow Number”), except for bad faith, gross negligence or willful misconduct, then a number of Escrow Shares equal to the Two-Thirds Escrow Number shall be retained in escrow and the parties agree to indemnify remaining Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect Shares shall be released to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it Indemnifying Securityholders in accordance with the advice Escrow Agreement; provided, however, that if any Parent Claims remain unsatisfied on the First Expiration Date, no Escrow Shares shall be released to the Indemnifying Securityholders if and to the extent that the release of such counsel.Escrow Shares would cause the number of Escrow Shares remaining in escrow to be less than the sum of
(i) the Two-Thirds Escrow Number, plus (ii) 100% of the number of Escrow Shares which, in the reasonable judgment of Parent (subject to the objection of the Representative and the subsequent resolution of the matter in the manner provided in Section 14.9), is necessary to satisfy any unsatisfied Parent Claims properly asserted on a timely basis by a Parent Indemnified Party on or prior to the First Expiration Date in any Officer’s Certificates delivered to the Representative pursuant to Section 14. (c) On the 36-month anniversary of the Closing Date (the “Second Expiration Date,” and the period commencing immediately after the expiration of the First Escrow Agent Period and ending on the Second Expiration Date shall not be required referred to defend as the “Second Escrow Period”), any legal proceeding which may and all Escrow Shares that remain in escrow on such date shall be instituted against it with respect released from escrow; provided, however, that the portion of the Escrow Shares which, in the reasonable judgment of Parent (subject to the Escrowed Fundsobjection of the Representative and the subsequent resolution of the matter in the manner provided in Section 14.9), is necessary to satisfy any unsatisfied Parent Claims properly asserted on a timely basis by a Parent Indemnified Party on or prior to the Property First Expiration Date or Second Expiration Date, as applicable, in any Officer’s Certificates delivered to the subject matter of this Agreement unless requested Representative pursuant to do so by Purchaser or Seller and is indemnified to its satisfaction against Section 14 shall remain in the cost and expense of foregoing escrow until such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall claims have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting been finally resolved, or, if earlier, until released in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper partiesSection 14.9 below.
Appears in 1 contract
Samples: Merger Agreement
Escrow. (a) Escrow Agent will hold If the Xxxxxxx Money Deposit in escrow in an interest-bearing account Additional Payment is payable, a portion of the type generally used Shares, equal in number to the quotient by Escrow Agent for the holding of escrow funds until the earlier of dividing (i) the Closing, or $363,000 by (ii) the termination IPO Price (the "Escrow Shares") shall be reserved from the Shares otherwise transferable to Seller on the Transfer Payment Date and shall be deposited by Buyer into escrow within five days of the Transfer Payment Date. Any Escrow Cash payable by Buyer shall be deposited by Buyer into escrow within five days of the Additional Wire Transfer Date. The Escrow Shares and the Escrow Cash, as the case may be, (the "Escrow Amount") shall be held in escrow as a source of payment for and to secure, without limitation on any legal right or remedy otherwise available to Buyer (other than as set forth in the last sentence of Section 2.5), (A) the liquidated damages amount potentially payable by Seller pursuant to Section 2.5 and (B) the indemnification obligations of Seller pursuant to Section 5 of this Agreement in accordance with any right hereunderAgreement. In the event Purchaser has not terminated this Agreement by the end As of the Evaluation Perioddate that the Additional Payment is payable, the Xxxxxxx Money Deposit parties shall enter into an agreement regarding the terms under which the Escrow Amount shall be non-refundable held and paid to PurchaserSeller in the form attached hereto as Exhibit D (the "Escrow Agreement"), but which form shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid amended to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned include any changes reasonably requested by the Escrow Agent thereunder; provided, that such changes are reasonably acceptable to Purchaserthe parties hereto. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon The Escrow Agreement will provide that (i) one-half of any Escrow Shares shall be released to Seller, Seller 90 days following the Effective Date and Purchaser that all the remaining Escrow Shares shall receive a credit against be released 181 days following the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit Effective Date and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of that any court of competent jurisdiction. Upon such deposit, Escrow Agent will Cash shall be released from all duties and responsibilities hereunder. Escrow Agent shall have to Seller 181 days following the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselEffective Date.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Escrow. (a) The Escrow Amount will be deposited by Purchaser at Closing and held in an escrow account managed by the Escrow Agent, pursuant to an escrow agreement in the form attached hereto as Exhibit A (the “Escrow Agreement”) to be executed and delivered by Sellers, Purchaser and the Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall The costs and fees to be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned charged by the Escrow Agent shall be shared equally between Purchaser and Sellers. The Escrow Amount shall be available to Purchaser. In the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Sellersatisfy any indemnity claims made by, and determined in favor of, Purchaser shall receive a credit against the Purchase Price in the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent pursuant to, and subject to the release of the Xxxxxxx Money Depositterms of, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000Section 5.4 and/or ARTICLE VIII.
(b) On the date that is twelve (12) months after the Closing Date (the “First Anniversary Release Date”), the Escrow Agent shall not be liable unconditionally release to Direct Seller (who shall disburse any party amounts received for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising benefit of the Related Subsidiaries in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"manner described in Section 1.5(c)(iii), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either ) an amount equal to:
(i) continue If, prior to hold the Escrowed Funds until otherwise directed First Anniversary Release Date, there has not been a Claim Final Resolution, (A) fifty percent (50%) of the Escrow Amount deposited by Purchaser at Closing on the Escrow Account, minus (B) any amounts previously released from the Escrow Account to Purchaser, minus (C) an amount (the “Pending Claim Amount”) equal to any then pending and unresolved claims for indemnification under Section 5.4 and ARTICLE VIII for which notice has been provided to Sellers in a writing signed by all parties hereto or accordance with Section 5.4 and/or ARTICLE VIII, as applicable; or
(ii) deposit if, prior to the Escrowed Funds with First Anniversary Release Date, there has been a Claim Final Resolution, (A) the clerk remainder of the Escrow Amount on the Escrow Account, minus (B) any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselPending Claim Amount.
(c) Following a final and non-appealable conclusion, settlement or abandonment of the Identified Claim (a “Claim Final Resolution”) occurring on or after the First Anniversary Release Date, the Escrow Agent shall not unconditionally release to Sellers an amount equal to (i) the remainder of the Escrow Amount on the Escrow Account, minus (ii) any Pending Claim Amount.
(d) To the extent there is a Pending Claim Amount at the time of any release from the Escrow Account, such Pending Claim Amount shall be required to defend any legal proceeding which may be instituted against it with respect to retained by the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given the Escrow Agreement until Final Determination of the amount of Loss relating to it hereunder and believed by it the claims to have been signed by the proper partieswhich such amount relates (at which time such amount shall be disbursed in accordance with such Final Determination).
Appears in 1 contract
Samples: Membership Interest and Asset Purchase Agreement (Smith Micro Software, Inc.)
Escrow. (a) The Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account Amount shall be comprised of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of two separate and distinct amounts: (i) $3,000,000 of the ClosingEscrow Amount (the “Indemnification Escrow”) shall be used to satisfy Losses, if any, for which the Buyer Indemnitees are entitled to indemnification or reimbursement in accordance with Article XI hereof, and to satisfy the Working Capital Shortfall, if any, described in Section 2.6(e) hereof to the extent such shortfall exceeds the Working Capital Escrow, and (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end $500,000 of the Evaluation Period, Escrow Amount (the Xxxxxxx Money Deposit “Working Capital Escrow”) shall be non-refundable used to Purchasersatisfy the Working Capital Shortfall, but shall if any, described in Section 2.6(e) hereof and for any payment required to be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid made with respect to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to unclaimed property under Section 11.2(a)(v).
(b) Promptly following the expiration of the Evaluation PeriodNet Working Capital adjustment period as set forth in Section 2.6 and resolution of all disputes, if any, regarding the Final Working Capital and Final Cash, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by Working Capital Escrow portion of the Escrow Agent Amount shall be disbursed as follows: (i) if there exists a Working Capital Shortfall or Cash Shortfall, Buyer shall be entitled to Purchaser. In an amount equal to the event Working Capital Shortfall and/or Cash Shortfall and the Closing occursremainder of the Working Capital Escrow portion of the Escrow Amount, the Xxxxxxx Money Deposit and all interest accrued thereon will if any, shall be released to Seller, provided, however, if the Working Capital Shortfall and/or Cash Shortfall exceeds the Working Capital Escrow portion of the Escrow Amount, then Buyer shall be entitled to the entire Working Capital Escrow portion of the Escrow Amount, and Purchaser if Seller fails to pay such amount, a disbursement from the Indemnification Escrow portion of the Escrow Amount in an amount equal to the sum of the Working Capital Shortfall and Cash Shortfall less the Working Capital Escrow; and (ii) if there exists a Working Capital Surplus and Cash Surplus, the entire Working Capital Escrow portion of the Escrow Amount shall receive a credit against the Purchase Price in be released (less any Loss paid to Buyer pursuant to Section 11.2(a)(v) prior to such date) to Seller and Buyer shall pay to Seller the amount of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit Working Capital Surplus and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it Cash Surplus in accordance with the advice of such counselSection 2.6(e).
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.
Appears in 1 contract
Samples: Stock Purchase Agreement (Palace Entertainment Holdings, Inc.)
Escrow. (a) On the Closing Date, Buyer shall pay or cause to be paid, by wire transfer of immediately available funds, the Indemnification Escrow Agent will hold Amount to the Xxxxxxx Money Deposit in escrow Escrow Agent, to be held in an interest-bearing escrow account of (the type generally used by “Escrow Agent for the holding of escrow funds until the earlier of (iAccount”) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid to the party entitled to the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent and used to Purchaser. In satisfy, at least in part, (i) any claims by any Buyer Indemnified Persons for satisfaction of any indemnification claim of any Buyer Indemnified Persons pursuant to Article VIII, (ii) any Adjustment Amount payable to Buyer which exceeds the event amount in the Closing occursWorking Capital Adjustment Fund, the Xxxxxxx Money Deposit and (iii) any and all interest accrued thereon will be released other claims made by Buyer or any Buyer Indemnified Person pursuant to Sellerthis Agreement or in connection with the transactions contemplated hereby that are permitted by the terms of this Agreement (i.e., and Purchaser shall receive a credit against the Purchase Price in the amount case of fraud, willful breach, intentional misrepresentation or active concealment) or become payable pursuant to the Xxxxxxx Money Deposit, with terms of this Agreement or the interestEscrow Agreement. In all instances, The Escrow Agent shall not release hold and invest the Xxxxxxx Money Deposit to either party until Indemnification Escrow Amount in accordance with the terms of the Escrow Agreement. Any escrow or closing fees of the Escrow Agent has been requested shall be paid 50% by Seller Buyer and 50% by the Company. Upon any claim for indemnification under Article VIII or Purchaser for other claims made by Buyer related hereto (including claims pursuant to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent toSection 2.6), the release Representative shall serve as the designated representative of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, Sellers for purposes of reporting receiving notices, contesting claims, and authorizing payments for such claims. If the interest earningsSellers become obligated (whether through mutual agreement between Buyer and the Representative, is 00as a result of a final non-0000000appealable judicial determination or otherwise finally determined in accordance with the terms hereof or the terms of the Escrow Agreement) to provide indemnification or another payment pursuant to or in accordance with the terms of this Agreement, Buyer and the Representative shall, if necessary for release of funds from the Escrow Account, execute joint written instructions to the Escrow Agent to disburse the appropriate amounts from the Escrow Account in accordance with the terms of this Agreement and the Escrow Agreement. Seller represents that its tax identification numberSubject to the limitations set forth in this Agreement, nothing in this Section 2.7 shall be construed as limiting claims by a Buyer Indemnified Person for purposes satisfaction of reporting any indemnification or other claims under Article VIII or otherwise, to the interest earnings, is 00-0000000amount then held in escrow.
(b) Escrow Agent shall not be liable to any party The Parties agree for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either Tax purposes that: (i) continue the right of the Sellers to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto Indemnification Escrow Amount shall be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provisions of state, local or non-U.S. Law, as appropriate; (ii) deposit interest may be imputed on such amount, as required by Section 483 or 1274 of the Escrowed Funds with Code; (iii) Buyer shall be treated as the clerk owner of any court the Indemnification Escrow Amount and all interest and earnings earned from the investment and reinvestment of competent jurisdiction. Upon such depositthe Indemnification Escrow Amount, or portion thereof, shall be allocable to Buyer pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; and (iv) in no event shall the total amount of the Indemnification Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have Amount paid to the right Sellers under this Agreement exceed an amount designated by the parties prior to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselClosing.
(c) Promptly following the date that is the 18-month anniversary of the Closing Date, Buyer and the Representative shall cause the Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectibility of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting (in accordance with any written instructions given the terms of the Escrow Agreement) to it hereunder and believed pay (by it wire transfer of immediately available funds) to have been signed such account(s) designated by the proper partiesRepresentative, the amount, if any, remaining in the Escrow Account that is not then claimed by Buyer to be owed to a Buyer Indemnified Person, together with any interest earned on any such amount, for distribution to the Sellers, all as may be provided in and pursuant to the terms of the Escrow Agreement.
Appears in 1 contract
Escrow. (a) The Stock Certificates and the undated Stock Power shall be delivered simultaneously herewith to Escrow Agent, and shall remain in escrow until all of Pledgor’s Obligations under the Guaranty and this Agreement, and all of the Borrower’s obligations under the Note and the other Loan Documents have been performed in full, at which time Pledgor shall notify Escrow Agent will hold the Xxxxxxx Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of writing that (i) the ClosingPledgor has satisfied all of its obligations under the Guaranty, or (ii) the termination Borrower has satisfied all of this Agreement in accordance with its obligations under the Note and the other Loan Documents, (iii) the pledge hereunder should be terminated, and (iv) the Stock Certificates and undated Stock Power should be returned to Pledgor. Upon receipt of such notice, Escrow Agent, without any right hereunder. In obligation to determine whether all obligations due under the event Purchaser has not terminated this Agreement by Guaranty or all payments due under the end of Note and the Evaluation Periodother Loan Documents were made, shall notify Secured Party that it is prepared to deliver the Xxxxxxx Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Xxxxxxx Money Deposit shall be paid Stock Certificates and related Stock Power to the party entitled Pledgor. If the Secured Party objects to such delivery, it shall give notice (the Xxxxxxx Money Deposit. In the event this Agreement is terminated prior “Objection Notice”) to the expiration of the Evaluation Period, the Xxxxxxx Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In and Pledgor within thirty (30) days after receiving the event the Closing occurs, the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount aforesaid notice of the Xxxxxxx Money Deposit, with the interest. In all instances, Escrow Agent shall not release the Xxxxxxx Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Xxxxxxx Money Deposit and has given the other party five (5) Business Days to dispute, or consent to, the release of the Xxxxxxx Money Deposit, provided that, if the Closing occurs, the Xxxxxxx Money Deposit and interest thereon will be applied as set forth above on the Closing Date. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000Agent.
(b) If the Escrow Agent shall does not be liable to any party for any act or omissionreceive an Objection Notice from the Secured Party within the aforesaid thirty (30) day period, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claimsshall, damageswithout further instructions, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Xxxxxxx Money Deposit and the interest earned thereon (the "ESCROWED FUNDS"), Escrow Agent shall not be bound to release and deliver the Escrowed Funds Stock Certificates and related Stock Power to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counselPledgor.
(c) If the Escrow Agent receives an Objection Notice from the Secured Party within such thirty (30) day period, then the Escrow Agent shall not be required to defend any legal proceeding which may be instituted against retain the Stock Certificates and related Stock Power in escrow until it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for received either of the genuineness or validity of any document or other item deposited with it or following:
(i) written instructions signed by Pledgor and Secured Party setting forth to whom the collectibility of any check delivered in connection with this Agreement. Escrow Agent Stock Certificates and related Stock Power shall be fully protected in acting in accordance with any written instructions given delivered; or
(ii) a final order of a court of competent jurisdiction setting forth to it hereunder whom the Stock Certificates and believed by it to have been signed by the proper partiesrelated Stock Power shall be delivered.
Appears in 1 contract
Samples: Stock Pledge, Escrow and Security Agreement (Cord Blood America, Inc.)