Escrow. a. Escrow Agent shall hold and disburse the Deposit in accordance with the following provisions: i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller. ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder. iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only. iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document. v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default. vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 16 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement, Purchase and Sale Agreement
Escrow. a. (a) Escrow Agent shall will hold and disburse 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 following provisions:
i. If 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, then the Escrow Agent shall deliver the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller.
ii. If for any reason , and Purchaser shall receive a credit against the Closing does not occur and either party makes a written demand upon Escrow Agent for payment Purchase Price in the amount of the Xxxxxxx Money Deposit, without the interest. In all other instances, Escrow Agent shall give written notice 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 of such demand. If Escrow Agent does not receive a written objection from the other party five (5) Business Days to object to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk release of the Court of Orange County, Florida. Escrow Agent shall give Xxxxxxx Money Deposit by giving written notice of such deposit objection to the requesting party and Escrow Agent. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000. Seller and Purchaser. Upon such depositrepresents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be relieved liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and discharged of all further obligations and responsibilities hereunder.
iii. the parties agree to indemnify Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in accordance with this Articleconnection herewith. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their mutual convenience, that . In the duties of the event Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited receives written notice of a dispute between the parties with respect to the safekeeping Xxxxxxx Money Deposit and disposition of the Deposit 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 accordance a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the provisions clerk of this Agreementany 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 taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent in good faith 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 believed by Escrow Agent is indemnified to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful defaultsatisfaction 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 liability document or obligation for loss other item deposited with it or the collectability of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise check delivered in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, . 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 right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;proper parties.
Appears in 9 contracts
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P), Agreement of Sale and Purchase (Mack Cali Realty L P), Agreement of Sale and Purchase (Mack Cali Realty L P)
Escrow. a. (a) Escrow Agent shall will hold and disburse 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 following provisions:
i. If 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, then the Escrow Agent shall deliver the Xxxxxxx Money Deposit and all interest accrued thereon will be released to Seller.
ii. If for any reason , and Purchaser shall receive a credit against the Closing does not occur and either party makes a written demand upon Escrow Agent for payment Purchase Price in the amount of the Xxxxxxx Money Deposit, without the interest. In all other instances, Escrow Agent shall give written notice 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 of such demand. If Escrow Agent does not receive a written objection from the other party five (5) Business Days to object to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk release of the Court of Orange County, Florida. Escrow Agent shall give Xxxxxxx Money Deposit by giving written notice of such deposit objection to the requesting party and Escrow Agent. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is [ ]. Seller and Purchaser. Upon such depositrepresents that its tax identification number, for purposes of reporting the interest earnings, is 00-0000000.
(b) Escrow Agent shall not be relieved liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and discharged of all further obligations and responsibilities hereunder.
iii. the parties agree to indemnify Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in accordance with this Articleconnection herewith. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their mutual convenience, that . In the duties of the event Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited receives written notice of a dispute between the parties with respect to the safekeeping Xxxxxxx Money Deposit and disposition of the Deposit 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 accordance a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the provisions clerk of this Agreementany 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 taken, suffered or omitted by it in accordance with the advice of such counsel.
(c) Escrow Agent in good faith 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 believed by Escrow Agent is indemnified to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful defaultsatisfaction 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 liability document or obligation for loss other item deposited with it or the collectability of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise check delivered in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, . 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 right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;proper parties.
Appears in 8 contracts
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P), Agreement of Sale and Purchase (Mack Cali Realty L P), Agreement of Sale and Purchase (Mack Cali Realty L P)
Escrow. a. If there is a dispute between Seller and Purchaser regarding whether all or any portion of the Deposit shall be returned to Purchaser or delivered to Seller, Escrow Agent shall hold and disburse have no obligation to either Seller or Purchaser with respect to the Deposit in accordance with except to interplead the following provisions:
i. If the Closing occurs, then the Deposit into an appropriate court of competent jurisdiction. Escrow Agent shall deliver may act upon any instrument or other writing believed by Escrow Agent in good faith to be genuine and to be signed and presented by the Deposit to Sellerproper person.
ii. (i) If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent for payment delivery of the DepositDeposit prior to Settlement, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does a notice of objection to the proposed payment is not receive a written objection received from the other party to the proposed payment within TEN ten (10) business days after the giving of such noticenotice by Escrow Agent, Escrow Agent is hereby authorized to make such paymentdeliver the Deposit to the party who made the demand. If Escrow Agent does receive such written receives a notice of objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentsaid period, then Escrow Agent shall continue to hold such amount until otherwise directed by written instructions the Deposit and thereafter pay it to the party entitled when Escrow Agent receives: (i) a notice from the objecting party withdrawing the objection, or (ii) a notice signed by both parties to this Agreement directing disposition of the Deposit, or (iii) a final judgment in courtor order from a court of competent jurisdiction. HoweverExcept for its bad faith, gross negligence or willful misconduct, Escrow Agent shall have the right at not be liable for any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk loss or impairment of the Court of Orange CountyDeposit;
(ii) Except for its bad faith, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such depositgross negligence or willful misconduct, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.Agent;
v. The parties acknowledge that (iii) Escrow Agent is acting solely as a stakeholder at their request and for their convenienceshall not be bound in any way by any other contract or understanding between the parties hereto, that the duties of the whether or not Escrow Agent hereunder are purely ministerial has knowledge thereof or consents thereto unless such consent is given in nature writing;
(iv) Escrow Agent’s sole duties and responsibilities shall be expressly limited to the safekeeping hold and disposition of disburse the Deposit in accordance with the provisions of this Agreement. ; provided, however, that Escrow Agent shall have no responsibility for the clearing or collection of the check (if any) representing the Deposit;
(v) Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by the bad faith, gross negligence of willful misconduct or Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. ;
(vi) Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement;
(vii) Escrow Agent may resign at any time upon at least ten (10) days prior written notice to the parties hereto. If, except prior to the effective date of such resignation, the parties hereto shall have approved, in writing, a successor escrow agent, then upon the resignation of Escrow Agent, Escrow Agent shall deliver the Deposit to such successor escrow agent. From and after such resignation and the delivery of the Deposit to such successor escrow agent, Escrow Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement, all of which duties, responsibilities and obligations shall be performed by the appointed successor escrow agent. If, for any reason, the parties hereto shall not approve a successor escrow agent within such period, Escrow Agent may bring any appropriate action or proceeding for leave to deposit the Deposit with a court of competent jurisdiction pending the approval of a successor escrow agent, and upon such deposit Escrow Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement;
(viii) Seller and Purchaser hereby agree to, jointly and severally, indemnify, defend and hold Escrow Agent harmless from and against any liabilities, damages, losses, costs or expenses incurred by, or claims or charges made against, Escrow Agent (including reasonable counsel fees and court costs) by reason of Escrow Agent’s acting or failing to act in connection with any of the matters contemplated by this Agreement or in carrying out the terms of this Agreement, except as a result of Escrow Agent's ’s gross negligence or willful default.misconduct; and
vi. (ix) In the event that a dispute shall arise in connection with this Agreement, or as to the rights of any of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (iw) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitrationarbitration or otherwise, or otherwise; (iix) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;, except to the extent any claims against Escrow Agent arise from the bad faith, gross negligence or willful misconduct of Escrow Agent, or a breach of the Escrow Agent’s obligations under this Agreement, or (y) institute an action in interpleader or other similar action permitted by stakeholders in the State of New York, or (z) interplead any of the parties in any action or proceeding which may be brought to determine the rights of the parties to all or any part of the Deposit. The costs of any of the actions taken by Escrow Agent pursuant to clauses (w), (x), (y) or (z) of the immediately preceding sentence, including, without limitation, reasonable legal fees, shall be borne by whichever of Seller or Purchaser is the losing party (i.e., determined not to be the party entitled to the Deposit). In the event neither party is determined to be the losing party, the costs of any of the actions taken by Escrow Agent shall be borne by the Purchaser and Seller equally.
Appears in 7 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement, Purchase and Sale Agreement
Escrow. a. If there is a dispute between Seller and Purchaser regarding whether all or any portion of the Deposit shall be returned to Purchaser or delivered to Seller, Escrow Agent shall hold and disburse have no obligation to either Seller or Purchaser with respect to the Deposit in accordance with except to interplead the following provisions:
i. If the Closing occurs, then the Deposit into an appropriate court of competent jurisdiction. Escrow Agent shall deliver may act upon any instrument or other writing believed by Xxxxxx Agent in good faith to be genuine and to be signed and presented by the Deposit to Sellerproper person.
ii. (i) If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent for payment delivery of the DepositDeposit prior to Settlement, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does a notice of objection to the proposed payment is not receive a written objection received from the other party to the proposed payment within TEN ten (10) business days after the giving of such noticenotice by Escrow Agent, Escrow Agent is hereby authorized to make such paymentdeliver the Deposit to the party who made the demand. If Escrow Xxxxxx Agent does receive such written receives a notice of objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentsaid period, then Escrow Agent shall continue to hold such amount until otherwise directed by written instructions the Deposit and thereafter pay it to the party entitled when Escrow Agent receives: (i) a notice from the objecting party withdrawing the objection, or (ii) a notice signed by both parties to this Agreement directing disposition of the Deposit, or (iii) a final judgment in courtor order from a court of competent jurisdiction. HoweverExcept for its bad faith, gross negligence or willful misconduct, Escrow Agent shall have the right at not be liable for any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk loss or impairment of the Court of Orange CountyDeposit;
(ii) Except for its bad faith, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such depositgross negligence or willful misconduct, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.Agent;
v. The parties acknowledge that (iii) Escrow Agent is acting solely as a stakeholder at their request and for their convenienceshall not be bound in any way by any other contract or understanding between the parties hereto, that the duties of the whether or not Escrow Agent hereunder are purely ministerial has knowledge thereof or consents thereto unless such consent is given in nature writing;
(iv) Escrow Agent’s sole duties and responsibilities shall be expressly limited to the safekeeping hold and disposition of disburse the Deposit in accordance with the provisions of this Agreement. ; provided, however, that Escrow Agent shall have no responsibility for the clearing or collection of the check (if any) representing the Deposit;
(v) Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by the bad faith, gross negligence of willful misconduct or Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. ;
(vi) Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement;
(vii) Xxxxxx Agent may resign at any time upon at least ten (10) days prior written notice to the parties hereto. If, except prior to the effective date of such resignation, the parties hereto shall have approved, in writing, a successor escrow agent, then upon the resignation of Xxxxxx Agent, Xxxxxx Agent shall deliver the Deposit to such successor escrow agent. From and after such resignation and the delivery of the Deposit to such successor escrow agent, Xxxxxx Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement, all of which duties, responsibilities and obligations shall be performed by the appointed successor escrow agent. If, for any reason, the parties hereto shall not approve a successor escrow agent within such period, Xxxxxx Agent may bring any appropriate action or proceeding for leave to deposit the Deposit with a court of competent jurisdiction pending the approval of a successor escrow agent, and upon such deposit Escrow Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement;
(viii) Seller and Purchaser hereby agree to, jointly and severally, indemnify, defend and hold Escrow Agent harmless from and against any liabilities, damages, losses, costs or expenses incurred by, or claims or charges made against, Escrow Agent (including reasonable counsel fees and court costs) by reason of Escrow Agent’s acting or failing to act in connection with any of the matters contemplated by this Agreement or in carrying out the terms of this Agreement, except as a result of Escrow Agent's ’s gross negligence or willful default.misconduct; and
vi. (ix) In the event that a dispute shall arise in connection with this Agreement, or as to the rights of any of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (iw) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitrationarbitration or otherwise, or otherwise; (iix) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;, except to the extent any claims against Escrow Agent arise from the bad faith, gross negligence or willful misconduct of Escrow Agent, or a breach of the Escrow Agent’s obligations under this Agreement, or (y) institute an action in interpleader or other similar action permitted by stakeholders in the State of New York, or (z) interplead any of the parties in any action or proceeding which may be brought to determine the rights of the parties to all or any part of the Deposit. The costs of any of the actions taken by Escrow Agent pursuant to clauses (w), (x), (y) or (z) of the immediately preceding sentence, including, without limitation, reasonable legal fees, shall be borne by whichever of Seller or Purchaser is the losing party (i.e., determined not to be the party entitled to the Deposit). In the event neither party is determined to be the losing party, the costs of any of the actions taken by Xxxxxx Agent shall be borne by the Purchaser and Seller equally.
Appears in 4 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement, Purchase and Sale Agreement
Escrow. a. Escrow Agent shall hold The parties hereto make and disburse the Deposit in accordance with the following provisions:
i. If the Closing occurs, then designate Xxxxxxxx County Abstract and Title Company the Escrow Agent shall deliver the Deposit to Seller.
iifor this transaction. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the 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 Escrow Agent does receive such written objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such payment, Escrow Agent shall continue advised to hold such amount the “Deed” in Escrow until otherwise directed by written instructions from the parties purchase price has been paid in full; at which time the Deed will be delivered to this Agreement or a final judgment in courtthe Buyer(s). However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as directed to pay all expenses incurred in connection with the sale of the above-described real estate, including a stakeholder real estate commission of the gross proceeds from the sale. The Escrow/Closing Agent shall pay over the balance to which the Seller(s) are entitled to the Seller(s) or Sellers’ assigns. Seller(s) and Buyer(s) Responsibilities: (Place initial S=Seller B=Buyer SE= Split Equally) Contract SE Deed SE _ Escrow SE Closing SE Other In the event that Buyer(s) or Buyer’s lender needs a closing protection letter or other insurance coverage other than legal malpractice insurance available through the above-named escrow agent or the lender requires a loan closing agent. Buyer(s) shall be responsible for any additional fees attributable to the change in escrow or closing agent. Buyer(s) shall be responsible for the costs of filing the deed with the Register of Deeds office. The Escrow Agent reserves the right to require the balance of the purchase price to be provided by Certified Funds or bank wire transfer to the Escrow Agent’s financial institution at their request or prior to closing. Notwithstanding the definition of good funds under Kansas law, it is agreed by the parties hereto that funds to close must be fully settled and for their convenience, that unconditionally credited to the duties account of the Escrow Agent hereunder are purely ministerial at or prior to closing. The parties understand that applicable Kansas real estate laws prohibit the escrow agent from distributing the xxxxxxx money, once deposited, without the consent of all parties to this agreement. Buyer(s) and Seller(s)s agree that failure by either to respond in nature and writing to a certified letter from the escrow agent within seven (7) days of receipt thereof or failure to make written demand for return or forfeiture of an xxxxxxx money deposit within thirty (30) days of notice of cancellation of this agreement, shall be expressly limited constitute consent to the safekeeping and disposition distribution of the Deposit xxxxxxx money as suggested in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreementsuch certified letter, or as to demanded by the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;other party hereto.
Appears in 4 contracts
Samples: Real Estate Sales Contract, Real Estate Sales Contract, Real Estate Sales Contract
Escrow. a. Pledgor shall deposit with Escrow Agent shall hold and disburse the Deposit in accordance Plodded shares, along with the following provisionsaforesaid stock powers (all of which items shall hereinafter be referred to as the "Pledged Documents" including all stack assignments), to be held in escrow for future delivery as follows:
i. If the Closing occurs, then the a. Escrow Agent shall deliver the Deposit Pledged Documents to Seller.Pledgee within ten (10) business days after receiving an affidavit signed by Pledgee stating that:
(i) Pledgor is in default under the Note and all periods of time within which to cure such default have expired;
(ii. If for any reason ) Pledgee is accelerating the Closing does not occur and either party makes a written demand upon Escrow Agent for payment entire unpaid balance due under the Note; and
(iii) Pledgee demands delivery of the Deposit, Escrow Agent Pledged Documents. Pledgee shall give written notice to the other party simultaneously furnish Pledgor with a copy of such demandaffidavit. If Escrow Agent does has not receive a written received any protest or objection from the other party to the proposed payment Pledgor within TEN ten (10) business days after the giving of receipt of such noticeaffidavit, the Pledged Documents shall be delivered to the Pledgee. Upon such delivery of the Pledged Documents, Escrow Agent's duties hereunder shall terminate.
b. In the event Escrow Agent has received written instructions signed by both Pledgor and Pledgee notifying Escrow Agent of a sale of a portion of the Pledged Shares pursuant to the Employment Agreement, ESCROW Agent may release a portion or all of the Pledged Shares, as provided in such written instruction, and if Escrow Agent is hereby authorized designated to make such payment. If be the recipient of the proceeds from the sale of all OR a portion of the Pledged Shares, then Escrow Agent does receive shall deliver any such proceeds received in accordance with such written objection instructions.
c. In the event Escrow Agent has not delivered the Pledged Documents pursuant to subparagraph a. above, then Escrow Agent shall deliver the Pledged Document; to Pledgor within such TEN ten (10) day period or if for any other reason Escrow Agent business day; after receipt of the original of the Note marked. "Paid in good faith shall elect not to make such paymentfull", Escrow Agent shall continue to hold such amount until otherwise directed accompanied by written instructions from Pledgor indicating that the parties Note has been paid in full and the Pledged documents shall be delivered to this Agreement or a final judgment in courtPledgor at the address specified therein. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk Upon ouch delivery of the Court of Orange CountyPledged Documents, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful defaultduties hereunder shall terminate. Escrow Agent shall not have any liability or obligation for loss of all or any portion of Pledgee agrees to deliver the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit Note to Pledgor marked "paid in accordance with this Agreementfull", Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful defaultimmediately upon satisfaction thereof.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 4 contracts
Samples: Pledge and Escrow Agreement (Viragen Inc), Pledge and Escrow Agreement (Viragen Inc), Pledge and Escrow Agreement (Viragen Inc)
Escrow. a. Escrow Agent The certificates for the Restricted Shares shall hold and disburse the Deposit be deposited in accordance escrow with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment Secretary of the Deposit, Escrow Agent shall give written notice Company to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit held in accordance with the provisions of this Agreementparagraph. Escrow Agent Each deposited certificate shall be accompanied by a duly executed Assignment Separate from Certificate in the form attached hereto as EXHIBIT A. The deposited certificates shall remain in escrow until such time or times as the certificates are to be released or otherwise surrendered for cancellation as discussed below. Upon delivery of the certificates to the Company, you shall be issued an instrument of deposit acknowledging the number of Shares delivered in escrow to the Secretary of the Company. All regular cash dividends on the Shares (or other securities at the time held in escrow) shall be paid directly to you and shall not be liable for held in escrow. However, in the event of any action taken dividend, split, recapitalization or omitted by Escrow Agent other change affecting the Company's outstanding Shares as a class effected without receipt of consideration or in good faith and believed by Escrow Agent to be authorized the event of a split, a dividend or within its rights a similar change in the Shares, any new, substituted or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence additional securities or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit other property which is by reason of such transaction distributed with respect to the insolvency or failure Shares shall be immediately delivered to the Secretary of the institution of depository with whom Company to be held in escrow hereunder, but only to the extent the Shares are at the time subject to the escrow account is maintainedrequirements hereof. Upon As your interest in the disbursement Shares vests, as described above, the certificates for such vested Shares shall be released from escrow and delivered to you, at your request, within 30 days of their vesting. WITHHOLDING TAXES You agree, as a condition of this grant, that you will make acceptable arrangements to pay any withholding or other taxes that may be due as a result of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability vesting of Shares acquired under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vigrant. In the event that a dispute shall arise in connection with this Agreementthe Company determines that any federal, state, local or as foreign tax or withholding payment is required relating to the rights vesting of the parties in and to, or the disposition ofShares arising from this grant, the Deposit, Escrow Agent Company shall have the right to: (i) hold and retain all to require such payments from you, or withhold such amounts from other payments due to you from the Company or any part Affiliate. SECTION 83(b) Under Section 83 of the Deposit until Internal Revenue Code of 1986, ELECTION as amended (the "Code"), the difference between the purchase price paid for the Shares and their fair market value on the date any forfeiture restrictions applicable to such dispute Shares lapse will be reportable as ordinary income at that time. For this purpose, "forfeiture restrictions" include the forfeiture of unvested Shares that is settled or finally determined described above. You may elect to be taxed at the time the Shares are acquired, rather than when such Shares cease to be subject to such forfeiture restrictions, by litigation, arbitration, or otherwise; filing an election under Code Section 83(b) with the Internal Revenue Service within thirty (ii30) deposit days after the Deposit Grant Date. You will have to make a tax payment to the extent the Purchase Price is less than the fair market value of the Shares on the Grant Date. No tax payment will have to be made to the extent the Purchase Price is at least equal to the fair market value of the shares on the Grant Date. The form for making this election is attached as EXHIBIT B hereto. Failure to make this filing within the thirty (30) day period will result in an appropriate court the recognition of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;ordinary income by you (in the event the fair market value of the shares as of the vesting date exceeds the purchase price) as the forfeiture restrictions lapse.
Appears in 3 contracts
Samples: Restricted Share Agreement (Blackwater Midstream Corp.), Restricted Share Agreement (Blackwater Midstream Corp.), Restricted Share Agreement (Blackwater Midstream Corp.)
Escrow. a. SELLER’S attorney (the “Escrow Agent Agent”) shall hold the Deposit in Paragraph 2(a), above, in escrow in an IOLTA account until closing of title or sooner termination of this Agreement in accordance with its terms, and disburse shall pay over or apply the Deposit in accordance with the following provisions:
i. terms of this paragraph. The Escrow Agent shall hold the Deposit in an attorney’s IOLTA account for the benefit of the parties. At the closing of title as contemplated hereunder, the Deposit shall be paid by the Escrow Agent to or as directed by the SELLER. If for any reason the Closing occursclosing does not occur and either party gives Notice to the Escrow Agent pursuant to Paragraph 32 demanding payment of the Deposit, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written give prompt Notice of such demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demandparty. If the Escrow Agent does not receive a written objection from the such other party Notice of an objection to the proposed payment within TEN seven (107) business days after giving such Notice, the giving of such notice, Escrow Agent is hereby authorized and directed to make such paymentpayment in accordance with the Notice. If the Escrow Agent does receive receives such written Notice of objection within such TEN said seven (107) business day period period, or if for any other reason the Escrow Agent in good faith shall elect not to make such payment, then the Escrow Agent shall may continue to hold such amount until otherwise directed by written instructions Notice from the parties to this Agreement or a final judgment in courtfinal, non-appealable judgment, order or decree of a Court of competent jurisdiction. However, the Escrow Agent shall have the right at any time to deposit the escrowed proceeds Deposit and the interest thereon, if any, with a court of competent jurisdiction where the clerk of the Court of Orange County, Florida. Escrow Agent Premises is located and shall give written notice Notice of such deposit to Seller SELLER and PurchaserBUYER. Upon such depositdeposit or other disbursement in accordance with the terms of this Paragraph 3, the Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, convenience and that the duties Escrow Agent shall not be liable to either party for any act or omission on its part unless taken or suffered in bad faith, on account of gross negligence, or in willful disregard of this Agreement on the part of the Escrow Agent. SELLER and BUYER agree, jointly and severally (with right of contribution) to defend (by counsel selected by the Escrow Agent), indemnify and hold the Escrow Agent hereunder are purely ministerial harmless from and against all costs, claims and expenses (including reasonable attorney’s fees) incurred in nature connection with the performance of the Escrow Agent’s duties hereunder, except with respect to acts or omissions taken or suffered by the Escrow Agent in bad faith, on account of gross negligence, or in willful disregard of this Agreement on the part of the Escrow Agent. In the event the Deposit is deposited with a court of competent jurisdiction pursuant to the terms herein, the parties to this Agreement hereby authorize the Escrow Agent to deduct the reasonable costs and attorney’s fees associated with an action of interpleader. The 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 firm) and shall be expressly limited to fully protected in so acting or refraining from acting upon the safekeeping and disposition advice of such counsel. The Escrow Agent acknowledges receipt of the Deposit in accordance with by check or wire, subject to collection and the Escrow Agent’s agreement to the provisions of this paragraph by signing in the place indicated on the signature page of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion member of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon its firm shall be permitted to act as counsel for SELLER in any dispute as to the disbursement of the Deposit in accordance with this Agreement, or any other dispute between the parties whether or not the Escrow Agent shall be relieved and released from any liability under this Agreement, except is in connection with possession of the Deposit and/or continues to act as the Escrow Agent's gross negligence or willful default.
vi. In the event that The parties waive claim to a dispute shall arise in connection with conflict regarding this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, paragraph. Escrow Agent shall have the right to: (i) hold and retain all or no liability for any part loss of the Deposit until such dispute occurring on account of FDIC limits for sums insured on deposit. It is settled specifically understood and agreed that at closing, BUYER shall tender to SELLER official, cashier’s or finally determined by litigation, arbitrationbank checks drawn on a federally-regulated or Connecticut state-chartered bank, or otherwise; a bank that is a member of the New York Clearing House, the proceeds of which are immediately available, or wired funds. All checks shall be made payable to SELLER’S attorney as trustee for SELLER, unless otherwise directed in writing by SELLER or SELLER’S counsel for the balance of the purchase price due at closing as set forth in this Agreement less the amounts of all mortgage payoffs. Additionally, BUYER’S attorney shall tender separate bank or treasurer’s check(s) to SELLER for payoff of SELLER’S mortgage obligations. On or before ten calendar days (ii10) deposit before closing, SELLER shall provide BUYER’s attorney with written directions for each mortgage payoff stating the Deposit name of payee and the total amount of payoff together with a copy of the associated payoff statement(s). SELLER shall calculate the total payoff amount (including applicable per diems, late charges, etc.) that shall be in an appropriate court of lawamount sufficient to pay the mortgage in full. SELLER shall be responsible for preparing the mortgage payoff package(s) and transmittal(s). Immediately after closing, following which Escrow Agent SELLER’S attorney shall thereby wire or hand deliver or send via overnight carrier the payoff funds and thereafter be relieved and released from any liability or obligation under this Agreement;package to the SELLER’S lender(s).
Appears in 3 contracts
Samples: Residential Real Estate Sales Agreement, Residential Real Estate Sales Agreement, Residential Real Estate Sales Agreement
Escrow. a. Escrow Agent shall hold and disburse the Deposit in accordance Forte represents that it has deposited with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment an escrow agent copies of the Depositsource code and reasonable technical documentation for all the most recent versions of the Products licensed under the Agreement, pursuant to a Technology Escrow Agent shall give written notice Agreement with such escrow agent, a copy of which has been provided to VAR. Upon VAR's execution of the other party of such demand. If Escrow Agent does not receive instrument enrolling VAR as a written objection from the other party to the proposed payment within TEN (10) days after Technology Escrow Agreement attached as Exhibit G, VAR shall be entitled to receive a copy of the giving of such noticeescrowed source code and documentation from the escrow agent in the event Forte becomes insolvent, Escrow Agent is hereby authorized a party to a bankruptcy filing, ceases business operations generally or ceases to make such paymentavailable maintenance or support services for the then-current version of the licensed Product. If Escrow Agent does receive such written objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith Forte shall elect not pay all relevant escrow fees to make such paymentthe escrow agent. In the event VAR receives the escrowed source code and documentation, Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent VAR shall have the royalty-free, nonexclusive, perpetual right at any time to deposit use such source code solely for use in maintaining and supporting the escrowed proceeds and interest thereon, if any, with licensed Products under the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions terms of this Agreement. Escrow Agent All such source code, as delivered or modified, shall constitute Confidential Information of Forte for purposes of Section 7.1 of the Agreement, and VAR shall not be liable for any action taken disclose the source code or omitted by Escrow Agent in good faith its modifications to others or permit others to copy the source code or modifications thereof. Forte shall update the deposited material within thirty (30) days after each major update to the licensed Product. Forte [*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. acknowledges VAR's right to request and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom receive verification from the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability agent (and/or Forte) confirmation that Forte has deposited source materials as obligated under this Agreementparagraph. [*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. Exhibit A --------- Forte Software, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in Inc. ------------------- VAR Fees and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;Royalties ----------------------
Appears in 3 contracts
Samples: Value Added Reseller License and Services Agreement (Chordiant Software Inc), Value Added Reseller License and Services Agreement (Chordiant Software Inc), Value Added Reseller License and Services Agreement (Chordiant Software Inc)
Escrow. a. Xxxxx agrees to open an escrow (“Escrow’) in accordance with this Agreement at Xxxxxxx Title (“Escrow Agent Holder”), located at 0000 Xxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 and deposit a fully executed copy of this Agreement by no later than seven (7) days after City Council approval of this Agreement. Buyer shall, concurrent with the delivery of this Agreement deposit Five Thousand Dollars and Zero cents ($5,000.00) into Escrow. Buyer shall hold deliver an additional deposit Five Thousand Dollars and disburse Zero cents ($5,000.00) into Escrow within three (3) days after Buyer waives due diligence conditions as set forth in Section 4 (b) above. These deposits may be referred to herein as the Deposit “Xxxxxxx Money Deposits”. The Xxxxxxx Money Deposits will be applied against the Purchase Price at closing. All usual and reasonable fees, charges, and costs (including transfer taxes, if any) which arise in the Escrow, shall be paid by Buyer upon demand of Escrow Holder. This Agreement constitutes the joint escrow instructions of the Parties, and Xxxxxx Holder to whom these instructions are delivered is empowered to act under this Agreement. The Parties agree to do all acts reasonably necessary to close Escrow as soon as possible, but in all events by no later than forty-nine (49) months after the Effective Date (June 30, 2023). The terms “closing” and/or “close of Escrow” as used herein shall mean the date necessary instruments of conveyance are recorded in the office of the County Recorder. Recordation of instruments delivered through Escrow are authorized if necessary or proper in the issuance of title insurance pursuant to this Agreement. Concurrent with the opening of Escrow, Escrow Holder shall order a Preliminary Title Report for the subject Property to be delivered for review by both Xxxxx and Seller. Buyer shall review and respond to said Preliminary Report as set forth in Section 4 (b). Buyer shall, upon receipt of a statement of estimated closing cost from Escrow Holder, deposit the balance of the Purchase Price together with additional funds as set forth in the statement. The deposit shall be made in accordance with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 wire transfer instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature Holder and shall be expressly limited made in sufficient time to allow for the timely close of Escrow. Buyer shall execute and deposit into Escrow a Certificate of Acceptance accepting fee title to the safekeeping Property in sufficient time to allow for the timely close of Escrow. Seller shall execute and disposition deliver into Xxxxxx an executed Xxxxx Xxxx conveying fee title to the Property to Buyer in sufficient time to allow for the timely close of Escrow. Seller and Buyer agree to deposit with Escrow Holder any additional instruments as may be reasonable and necessary to complete this transaction in a timely manner. All funds received in Escrow shall be deposited with other Escrow funds in a general escrow account(s) and may be transferred to any other such escrow trust account in any State or National Bank doing business in the State of California. All disbursements shall be made by wire transfer from such account, unless Seller requests another form of payment.”
2. Section 17 (Buyer’s Conditions to Close) of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent Agreement shall be relieved amended and released from any liability under this Agreement, except restated in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or its entirety as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;follows:
Appears in 3 contracts
Samples: Real Property Purchase and Sale Agreement, Real Property Purchase and Sale Agreement, Real Property Purchase and Sale Agreement
Escrow. a. The Deposit and any other sums which the parties agree shall be held in escrow (herein collectively called the “Escrow Agent Deposits”), shall hold be held by the Escrow Agent, in trust, and disburse the Deposit disposed of only in accordance with the following provisions:
i. (a) The Escrow Agent shall invest the Escrow Deposits in government insured interest-bearing instruments reasonably satisfactory to both Buyer and Seller or in a mutual fund with assets in excess of One Billion Dollars which invests in government-issued interest bearing instruments reasonably satisfactory as aforesaid, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, and shall promptly provide Buyer and Seller with confirmation of the investments made.
(b) If the Closing occurs, then the Escrow Agent shall deliver the Deposit Escrow Deposits to SellerSeller on the Closing Date and the Escrow Deposits shall be credited on account of the Purchase Price, or upon instructions of Buyer, returned to Buyer and the Purchase Price shall not be credited, but shall be paid in full by Buyer.
ii(c) If for any reason the Closing does not occur, the Escrow Agent shall deliver the Escrow Deposits to Seller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions of this Subsection (c). If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent for payment of the DepositEscrow Deposits, the Escrow Agent shall give written notice to the other party of such demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN ten (10) days after the Escrow Agent’s 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 TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentperiod, the Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement signed by Seller and Buyer or a final judgment in of a court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. (d) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties Escrow Agent shall not be deemed to be the agent of either of the Escrow Agent hereunder are purely ministerial in nature parties, and shall be expressly limited to that the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable to either of the parties for any action or omission on its part taken or omitted made in good faith, and not in disregard of this Agreement, but shall be liable for its negligent acts and for any Liabilities (including reasonable attorneys’ fees and expenses) incurred by Seller or Buyer resulting from the Escrow Agent’s mistake of law respecting the Escrow Agent’s scope or nature of its duties. Seller and Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all Liabilities, including reasonable attorneys’ fees and expenses, incurred in connection with the performance of the Escrow Agent’s duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in good faith bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.
(e) Buyer shall pay any income taxes on any interest earned on the Escrow Deposits. Buyer represents and believed by warrants to the Escrow Agent that its taxpayer identification number is 00-0000000.
(f) The Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. confirm that the Escrow Agent shall not have any liability or obligation for loss of all or any portion of hold the Deposit by reason of Escrow Deposits, in escrow, and shall disburse the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this AgreementEscrow Deposits, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as pursuant to the rights provisions of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;Article 13.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (NTS Realty Holdings Lp), Purchase and Sale Agreement (NTS Realty Holdings Lp)
Escrow. a. If there is a dispute between Seller and Purchaser regarding whether all or any portion of the Deposit shall be returned to Purchaser or delivered to Seller, Escrow Agent shall hold and disburse have no obligation to either Seller or Purchaser with respect to the Deposit in accordance with except to interplead the following provisions:
i. If the Closing occurs, then the Deposit into an appropriate court of competent jurisdiction. Escrow Agent shall deliver may act upon any instrument or other writing believed by Escrow Agent in good faith to be genuine and to be signed and presented by the Deposit to Sellerproper person.
ii. (i) If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent for payment delivery of the DepositDeposit prior to Settlement, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does a notice of objection to the proposed payment is not receive a written objection received from the other party to the proposed payment within TEN ten (10) business days after the giving of such noticenotice by Escrow Agent, Escrow Agent is hereby authorized to make such paymentdeliver the Deposit to the party who made the demand. If Escrow Agent does receive such written receives a notice of objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentsaid period, then Escrow Agent shall continue to hold such amount until otherwise directed by written instructions the Deposit and thereafter pay it to the party entitled when Escrow Agent receives: (i) a notice from the objecting party withdrawing the objection, or (ii) a notice signed by both parties to this Agreement directing disposition of the Deposit, or (iii) a final judgment in courtor order from a court of competent jurisdiction. HoweverExcept for its bad faith, gross negligence or willful misconduct, Escrow Agent shall have the right at not be liable for any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk loss or impairment of the Court of Orange CountyDeposit;
(ii) Except for its bad faith, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such depositgross negligence or willful misconduct, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.Agent;
v. The parties acknowledge that (iii) Escrow Agent is acting solely as a stakeholder at their request and for their convenienceshall not be bound in any way by any other contract or understanding between the parties hereto, that the duties of the whether or not Escrow Agent hereunder are purely ministerial has knowledge thereof or consents thereto unless such consent is given in nature writing;
(iv) Escrow Agent’s sole duties and responsibilities shall be expressly limited to the safekeeping hold and disposition of disburse the Deposit in accordance with the provisions of this Agreement. ; provided, however, that Escrow Agent shall have no responsibility for the clearing or collection of the check (if any) representing the Deposit;
(v) Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by the bad faith, gross negligence of willful misconduct or Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. ;
(vi) Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement;
(vii) Escrow Agent may resign at any time upon at least ten (10) days prior written notice to the parties hereto. If, except prior to the effective date of such resignation, the parties hereto shall have approved, in writing, a successor escrow agent, then upon the resignation of Escrow Agent, Escrow Agent shall deliver the Deposit to such successor escrow agent. From and after such resignation and the delivery of the Deposit to such successor escrow agent, Escrow Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement, all of which duties, responsibilities and obligations shall be performed by the appointed successor escrow agent. If, for any reason, the parties hereto shall not approve a successor escrow agent within such period, Escrow Agent may bring any appropriate action or proceeding for leave to deposit the Deposit with a court of competent jurisdiction pending the approval of a successor escrow agent, and upon such deposit Escrow Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement;
(viii) Seller and Purchaser hereby agree to, jointly and severally, indemnify, defend and hold Escrow Agent harmless from and against any liabilities, damages, losses, costs or expenses incurred by, or claims or charges made against, Escrow Agent (including reasonable counsel fees and court costs) by reason of Escrow Agent’s acting or failing to act in connection with any of the matters contemplated by this Agreement or in carrying out the terms of this Agreement, except as a result of Escrow Agent's ’s gross negligence or willful default.misconduct; and
vi. (ix) In the event that a dispute shall arise in connection with this Agreement, or as to the rights of any of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (iw) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitrationarbitration or otherwise, or otherwise; (iix) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;, except to the extent any claims against Escrow Agent arise from the bad faith, gross negligence or willful misconduct of Escrow Agent, or a breach of the Escrow Agent’s obligations under this Agreement, or (y) institute an action in interpleader or other similar action permitted by stakeholders in the State of New Jersey, or (z) interplead any of the parties in any action or proceeding which may be brought to determine the rights of the parties to all or any part of the Deposit. The costs of any of the actions taken by Escrow Agent pursuant to clauses (w), (x), (y) or (z) of the immediately preceding sentence, including, without limitation, reasonable legal fees, shall be borne by whichever of Seller or Purchaser is the losing party (i.e., determined not to be the party entitled to the Deposit). In the event neither party is determined to be the losing party, the costs of any of the actions taken by Escrow Agent shall be borne by the Purchaser and Seller equally.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Escrow. a. Escrow Agent shall hold and disburse the Deposit in accordance with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Xxxxxx Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Xxxxxx Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Escrow. a. As security for a Participant’s faithful performance of the provisions of this Agreement, the participant agrees that the stock certificate(s) evidencing the Restricted Shares shall be delivered to the Escrow Agent shall Holder, who is hereby appointed to hold such stock certificate(s) in escrow and disburse the Deposit to take all such actions and to effectuate all such transfers and/or releases of such Restricted Shares as are in accordance with the following provisions:
i. If terms of this Agreement. The Escrow Holder will act solely for the Closing occurs, then Corporation as its agent and not as a fiduciary. The Participant and the Corporation agree that the Escrow Agent shall deliver the Deposit Holder will not be liable to Seller.
ii. If either (or to any other party) for any reason actions or omissions unless the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent Holder is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period grossly negligent or if for any other reason Escrow Agent intentionally fraudulent in good faith shall elect not to make such payment, Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that carrying out the duties of the Escrow Agent hereunder are purely ministerial in nature Holder under this subsection (c). The Escrow Holder may rely upon any letter, notice or other document executed with any signature purported to be genuine and shall may rely on the advice of counsel (which may be expressly limited counsel for the Corporation) and obey any order of any court with respect to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it transactions contemplated by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute the Corporation exercises its right to repurchase Restricted Shares held by the Escrow Holder, then upon payment by the Corporation of the Consideration for such Restricted Shares, the Escrow Holder shall arise in connection with this Agreement, or as deliver to the rights of Corporation the parties in stock certificate(s) evidencing those Restricted Shares. The Escrow Holder is empowered to act as the Participant’s attorney-in-fact to make such endorsements and to, or execute such stock powers as may be necessary to effect the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation repurchase contemplated under this Agreement;Section. The Escrow Holder will release from escrow, and deliver to the Participant, only those stock certificates that evidence the Restricted Shares for which the Corporation’s right to repurchase, as described in subsection (b) above, has expired.
Appears in 2 contracts
Samples: Executive Employment Agreement (Iptimize, Inc.), Executive Employment Agreement (Iptimize, Inc.)
Escrow. a. 13.1. Escrow Agent shall hold and disburse hereby acknowledges receipt of the Deposit and agrees to hold the Deposit in escrow until the Closing or sooner termination of this Agreement and shall pay over and apply the proceeds thereof in accordance with the following provisions:
i. If the Closing occursterms of this Agreement. If, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason reason, the Closing does not occur and either party Purchaser or Sellers makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN five (105) days Business Days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN five (105) day period Business Day period, or if for any other reason Escrow Agent in good faith shall elect not to make such payment, or in the event of any other dispute between Purchaser and Sellers, Escrow Agent shall either continue to hold such amount the Deposit until otherwise directed by written instructions from the parties to this Agreement or until a final judgment in court. However(beyond any applicable appeal period) by a court of competent jurisdiction is rendered disposing of such Deposit, Escrow Agent or shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk funds in a court of competent jurisdiction pursuant to CPLR 1006 or any other applicable statute. Upon delivery of the Court Deposit to either Purchaser, Sellers or a court of Orange County, Florida. Escrow Agent shall give written notice of such deposit competent jurisdiction under and pursuant to Seller and Purchaser. Upon such depositthis Section 13, Escrow Agent shall be relieved and discharged of all further liability, responsibility or obligation with respect to or arising out of the Deposit and any and all of its obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
ivtherefrom. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely liable as a stakeholder at their request depository only and for their convenience, that the its duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit and the delivery of same in accordance with the provisions terms of this Agreement.
13.2. Purchaser and Sellers hereby agree to indemnify, defend and hold harmless Escrow Agent shall not be liable for from and against any action taken or omitted by cost and expense Escrow Agent in good faith and believed by Escrow Agent may incur as a result of its agreement to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by act as Escrow Agent's own gross negligence or willful default. Purchaser and Sellers shall be equally responsible for such indemnity.
13.3. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of or depository with whom the escrow account is maintainedDeposit has been made. Upon the disbursement of the Deposit in accordance with this Agreement, The parties acknowledge that Escrow Agent shall deposit and maintain the Deposit with Chemical Bank and the parties agree that said institution is acceptable.
13.4. Escrow Agent shall not be relieved liable to Purchaser or Sellers, or any other party, for any action taken or omitted to be taken by it in good faith; and released from Escrow Agent shall not be responsible to any liability under this Agreementparty for the consequences of any oversight or errors of judgment on its part, except in connection with nor be answerable to any party for any loss, cost or expense unless same shall occur through Escrow Agent's gross negligence or willful defaultmisconduct. Escrow Agent shall be entitled to consult with counsel of its own choosing and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
vi13.5. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold to act in reliance upon any document, instrument or signature believed by it to be genuine and retain all to assume that any person purporting to give any notice or any part of instruction in accordance with the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which provisions hereof has been duly authorized to do so.
13.6. Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under execute this Agreement;Agreement solely to acknowledge its obligations as Escrow Agent hereunder.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Hudson Hotels Corp), Purchase and Sale Agreement (Salomon Brothers Holding Co Inc Salomon Brothers Inc)
Escrow. a. Concurrently with the execution of this Contract of Sale, Purchaser has delivered to Escrow Agent, a check(s) (subject to collection) in the amount of $50,000.00 as the downpayment (the "Downpayment"). On or before the expiration of the Due Diligence Period, Purchaser shall deliver a certified check or wire transfer to Escrow Agent shall hold for an additional $50,000.00 which is to be added to the Downpayment and disburse the Deposit held in escrow in accordance with the following provisions:
i. If terms hereof. Escrow Agent shall deposit the Closing occurs, then the Downpayment into an interest-bearing account(s) maintained at a federally insured financial institution(s). Escrow Agent shall deliver the Deposit to Seller.
iiDownpayment in accordance with this Contract of Sale, or a joint instruction signed by Seller and Purchaser, or separate instructions of like tenor signed by Seller and Purchaser, or a final judgment of a court of competent jurisdiction. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of hereby is authorized and directed to deliver the DepositDownpayment to Seller if, Escrow Agent shall give written notice to the other party of such demandas and when title closes. If Escrow Agent does not shall receive a written request by one party for the release of the escrow, Escrow Agent will give a copy thereof to the other party. If Escrow Agent shall not receive an objection from the other party to the proposed payment within TEN five (105) days after the giving of such noticebusiness days, then Escrow Agent is hereby authorized to make such paymentshall so release the Downpayment. If Escrow Agent does receive such written objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentreceives an objection, then Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement or a final judgment Downpayment in courtaccordance with the terms hereof. However, Escrow Agent shall have the right at any time to may deposit the escrowed proceeds Downpayment with a court of competent jurisdiction, and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written upon notice of such deposit to Seller and Purchaser. Upon Purchaser of such deposit, Escrow Agent shall be relieved and discharged of all have no further obligations and responsibilities responsibility or liability hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to may act as upon any instruction or other writing believed by Escrow Agent in accordance with this Articlegood faith to be genuine and to be signed or presented by the proper persons. Except as otherwise noted herein, any interest or income thereon shall be paid to the party entitled to receive the Downpayment; provided that if Seller shall receive the interest at Closing then such interest shall serve as a credit against the purchase price. It is understood and agreed that if a check for any portion of the Downpayment shall fail to clear then Escrow Agent shall deliver the portion, if any, of the Downpayment that shall have no duties cleared (together with any interest earned thereon) to Seller and this Contract shall terminate and neither party shall have any further obligations hereunder to the other except that Seller shall be permitted to attempt to collect from Purchaser on the check that shall have failed to clear by commencing litigation or responsibilities except those set forth in this Agreement and otherwise as provided for by law. Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as merely a stakeholder at their request stakeholder, and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial shall not be liable for any act or omission unless taken or suffered in nature and shall be expressly limited to the safekeeping and disposition of the Deposit bad faith, in accordance with the provisions willful disregard of this AgreementContract of Sale or involving gross negligence. Escrow Agent shall not be liable for the failure of the institution(s) in which the Downpayment has been deposited or for establishing accounts in excess of applicable guaranty limits. Seller and Purchaser agree to indemnify and hold Escrow Agent harmless from and against any reasonable costs, claims or expenses incurred in connection with the performance of the Escrow Agent's duties hereunder, unless such costs, claims or expenses were occasioned by Escrow Agent's bad faith or its willful disregard of this Contract of Sale. Escrow Agent shall not be bound by any agreement between Seller and Purchaser, whether or not Escrow Agent has knowledge thereof, and Escrow Agent's only duties and responsibilities shall be to hold, and to dispose of, the Downpayment and interest earned thereon in accordance with this Contract of Sale. Escrow Agent may consult with counsel, and any opinion of counsel shall be full and complete authorization and protection in respect to any action taken or omitted by Escrow Agent hereunder in good faith and believed by Escrow Agent to be authorized in reliance upon such opinion. All instructions or within its rights notices given to, or powers conferred upon it by this Agreementby, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved in writing and released from any liability under delivered in accordance with the requirements of this AgreementContract of Sale. For purposes of this paragraph, such instructions and notices shall be deemed delivered on the date of delivery, if by hand, or on the date of mailing if mailed, except in connection with Escrow Agent's gross negligence that no instruction or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as notice to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which be deemed effectively delivered to Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;until actual receipt thereof by Escrow Agent.
Appears in 2 contracts
Samples: Contract of Sale (BRT Realty Trust), Contract of Sale (BRT Realty Trust)
Escrow. a. Escrow Agent agrees to hold all of the Escrowed Property in escrow subject to the terms and conditions contained in this Escrow Agreement and the Document, if any. The provisions of this Escrow Agreement shall control in the event of any conflict between the provisions hereof and the provisions of the Document, if any.
b. Escrow Agent shall deposit the Escrowed property in an interest bearing account. All interest earned shall be paid to Navitrak International, Corp.
c. Escrow Agent shall not be deemed to have knowledge of any matter or thing unless and until Escrow Agent has actually received written notice of such matter or thing and Escrow Agent shall not be charged with any constructive notice whatsoever.
d. In the event the Escrowed Property consists in whole or in part of stocks, bonds, or certificates of deposit (or any other property which may fluctuate in value) Escrow Agent shall hold and disburse in escrow, pursuant to this Escrow Agreement, any proceeds of the Deposit in accordance with the following provisions:
i. If the Closing occurs, then the Escrowed Property actually delivered to Escrow Agent and realized as a result of splits, calls, redemptions, or otherwise, but shall deliver not be obligated to ascertain the Deposit existence of (or initiate recovery of) such proceeds or to Seller.
ii. If for become or remain informed with respect to the possibility or probability of such proceeds being realized at any reason time in the Closing does not occur future, or to inform any Principal(s) or any third party with respect to the nature and either party makes a extent of any proceeds realized, except upon the written demand upon Escrow Agent for payment request of such party, or to monitor current market values of the DepositEscrowed Property. Further, Escrow Agent shall give written notice not be obligated to proceed with any action or inaction based on information with respect to market values of the other party of such demand. If Escrowed Property which Escrow Agent does not receive a written objection from may in any manner learn, nor shall Escrow Agent be obligated to inform Principal(s) or any third party with respect to market values of any one or more of the other party to the proposed payment within TEN (10) days after the giving of such noticeEscrowed Property at any time, Escrow Agent is hereby authorized having no duties with respect to make such paymentinvestment management or information, all Principal(s) understanding and intending that Escrow Agents responsibilities are purely ministerial in nature. If Escrow Agent does receive such written objection within such TEN (10) day period Any reduction in the market value or if for any other reason Escrow Agent in good faith shall elect not to make such payment, the value of the Escrowed property while deposited with Escrow Agent shall continue to hold such amount until otherwise directed by written be at the sole risk of Principal(s).
e. In the event instructions from the parties to this Agreement or a final judgment in court. However, Principal(s) would require Escrow Agent shall have the right at to expend any time monies or to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such depositincur any cost, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunderentitled to refrain from taking any action until it receives payment for such costs.
iii. f. Principal(s) acknowledge and agree that nothing in this Escrow Agreement shall prohibit Escrow Agent has signed this Agreement from (1) serving in a similar capacity on behalf of others or (2) acting in the capacity of attorneys for one or more Principal(s) in connection with any matter.
g. Principal(s) acknowledge and agree that the sole purpose of agreeing Escrowed Property will be used to act pay Xxxx X. Xxxxxx'x Lump Sum Severance Package Compensation as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those more specifically set forth in paragraph 6.3 of the Document, or the Lump Sum Disability Severance Package Compensation, as more specifically set forth in paragraph 6.4 of the Document, as the case may be. Notwithstanding anything to the contrary contained in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent or the Document, the Escrowed Property shall be protected in relying released to Xxxx X. Xxxxxx upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given written notification to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition by Knight who is a member of the Deposit Board of Directors of Navitrak International, Corp. Absent such notification by Knight, the money shall remain in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
viescrow. In the event that Knight is no longer a dispute member of the Board of Directors of Navitrak International, Corp., Principal(s) shall arise in connection with this Agreement, or mutually designated person to replace Knight as to the rights of obligations under this Section 1(g) and shall jointly provide the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have with written notification as to the right to: (i) hold name, address and retain all or any part telephone number of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;person.
Appears in 1 contract
Escrow. a. Escrow Agent shall Any escrow agent receiving funds is authorized and ------ agrees by acceptance thereof to promptly deposit, to hold same in an escrow account, and to disburse the Deposit same subject to clearance thereof in accordance with the following provisions:
i. If terms and conditions of this Agreement. Failure of clearance of funds shall not excuse performance by the Closing occursBuyer. In the event of a dispute arising out of the Parties' performance under this Agreement or doubt as to Escrow Agent's duties or liabilities under the provisions of this Agreement, then the Escrow Agent shall deliver deposit all the Deposit monies then held pursuant to Seller.
ii. If for any reason this Agreement with the Closing does not occur and Title Company or, at the request of either party makes a written demand upon Escrow Agent for payment Party, with the Clerk of the Depositappropriate Court of the County having jurisdiction of the dispute, and upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall give written notice fully terminate except to the other party extent of such demandaccounting for any monies theretofore delivered out of escrow. If Provided that Escrow Agent does not receive a written objection from has complied with the other party to forgoing, in the proposed payment within TEN (10) days after event of any suit between Buyer and Seller wherein the giving of such notice, Escrow Agent is hereby authorized to make made a party by virtue of acting as such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposithereunder, Escrow Agent shall be relieved entitled to recover a reasonable attorney's fee and discharged of all further obligations costs incurred, said fees and responsibilities hereunder.
iiicosts to be charged and assessed as court costs against the non-prevailing party. Escrow Agent has signed this Agreement for All parties agree that the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties not be liable to any party or responsibilities except those set forth in person whomsoever for mis-delivery to Buyer or Seller of monies subject to this escrow, unless such mis-delivery shall be due to willful breach of this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon or gross negligence on the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties part of the Escrow Agent hereunder are purely ministerial Agent. All funds held in nature and escrow shall be expressly limited placed in an interest bearing federally insured account with interest accruing to the safekeeping benefit of Buyer and disposition of applied against the Deposit Purchase Price at Closing, or otherwise disbursed in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for Notwithstanding anything in this Agreement to the contrary, this escrow provision, including any action taken or omitted by Escrow Agent matters regarding the funds held in good faith escrow and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by the duties of the Escrow Agent's own gross negligence or willful default. Escrow Agent , shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit be governed and construed in accordance with this Agreement, the law of the jurisdiction where the Escrow Agent has its principal place of business. In addition, the venue for any litigation regarding this escrow provision shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to county where the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part has its principal place of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;business.
Appears in 1 contract
Escrow. a. The party acting as Escrow Agent shall is authorized and agrees to hold and disburse the Deposit in escrow in accordance with the following provisions:
i. If terms and conditions of this Contract. Any interest earned on the Closing occurs, then Deposit is paid to the Florida Bar. Checks issued for the Deposit will be deposited promptly for clearance. The Escrow Agent shall deliver not be held responsible for nonpayment of checks received. In the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, event Escrow Agent is hereby authorized in doubt as to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period or if for any other reason Escrow Agent its duties and liabilities under the provisions of the Agreement, it may in good faith shall elect not to make such payment, Escrow Agent shall its sole discretion continue to hold such amount the monies which are the subject of the escrow until otherwise directed by written instructions from Buyer and Seller mutually agree to the disbursement thereof, or until a judgment of a court of competent jurisdiction shall determine the rights of the parties thereto, or it may deposit all the monies then held in escrow pursuant to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court court having jurisdiction of Orange Countythe dispute, Florida. Escrow Agent shall give written notice and upon notifying all parties concerned of such deposit action, all liability on its part shall fully cease and terminate except to Seller and Purchaserthe extent of accounting for any monies theretofore delivered out of escrow. Upon such deposit, Escrow Agent shall be relieved and discharged In the event of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement any suit between Buyer and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon wherein the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is made a party by virtue of acting solely as a stakeholder at their request and for their convenienceescrow agent hereunder, that or in the duties event of any suit wherein the Escrow Agent hereunder are purely ministerial in nature and interpleads the subject matter of the escrow, it shall be expressly limited entitled to the safekeeping recover a reasonable attorneys; fee and disposition costs incurred, said fees and costs to be charged and assessed as court costs in favor of the Deposit in accordance with prevailing party. All parties agree that the provisions of this Agreement. Escrow Agent shall not be liable to any party or person whomsoever for any action taken misdelivery to Buyer or omitted by Escrow Agent in good faith and believed by Escrow Agent Seller of Monies subject to the escrow, unless such misdelivery shall be authorized due to willful breach of the Agreement or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful defaulton its part.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Real Estate Sale Contract (Royal Palm Beach Colony LTD Partnership)
Escrow. a. The Borrower hereby agrees to execute and deliver the Escrowed Documents, and related documents executed by the Borrower contemporaneously with the execution of this Agreement and to deliver them to Fidelity National Title Insurance Company, as Escrow Agent shall hold (the “Escrow Agent”) pursuant to this Agreement and disburse the Deposit in accordance with the following provisions:
i. If the Closing occursAcknowledgment and Agreement of Escrow Agent, then the Escrow Agent shall deliver the Deposit which document is to Sellerbe released and delivered to Lender as and when permitted by Section 6 below.
ii. If for any reason (a) The Borrower hereby acknowledges and agrees that, at the Closing does not occur and either party makes a written demand Lender’s option upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party Borrower following occurrence of the Forbearance Termination Date, the conveyance of the Property by way of the Escrowed Documents is expressly intended to be an immediate and absolute conveyance of Borrower’s right, title and interest, respectively, in the Property into escrow, which shall immediately vest in Lender on the date it shall receive the Escrowed Documents as and when permitted by Section 6 hereof, and such demandconveyance has not been granted nor is intended for security purposes in any respect. If Escrow Agent does The Lender shall promptly notify the Borrower of the delivery date of the Escrowed Documents.
(b) Borrower further acknowledges and agrees that the foregoing escrow is a true escrow under applicable law for all purposes and is not receive intended for security purposes or as a written objection disguised collateral arrangement in any manner whatsoever.
(c) Borrower hereby agrees, at its own expense, to execute, deliver, file and record, from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds time, any and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations or other instruments, agreements or other papers, and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for to perform such acts as Lender may require, to effect the sole purpose purposes of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller to secure to Lender the benefit of all rights and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying remedies conferred upon Lender by the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties terms of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it Loan Documents, as amended by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Escrow. a. Absent an election by Seller pursuant to Section 3.1 to permit Buyer and the Guarantors to enter into a separate arrangement to secure the indemnity obligations of Seller, the following provisions shall apply. On or prior to the Closing Date, Buyer shall deliver to Escrow Agent shall hold and disburse the Deposit Escrow Amount. The Escrow Amount will be held by Escrow Agent in the Escrow Account, to secure the indemnity obligations of Seller under Section 13.1 of this Agreement, in accordance with the applicable terms and conditions of this Agreement and of the Escrow Agreement. The Escrow Amount will be held in the Escrow Account for such purpose for a period of eighteen (18) months following provisions:
i. If the Closing occursDate or such shorter period as Buyer may agree, then and at the end of such period, all amounts not theretofore released to or upon the instruction of Buyer in respect of Losses (as defined in Section 13.1) for which Seller is obligated to indemnify the Buyer Indemnified Parties (as defined in Section 13.1), together with all income actually earned thereon, shall be released to or upon the instruction of Seller, all in accordance with the applicable terms and conditions of this Agreement and of the Escrow Agreement, provided that an amount equal to the amount claimed by Buyer pursuant to any unresolved indemnification claims shall remain in the Escrow Account until such claims are resolved. The fees and expenses of Escrow Agent shall deliver be paid first out of income actually earned on amounts held in the Escrow Account (including the Deposit and the Escrow Amount), and to the extent such income is not sufficient therefor, such fees and expenses shall be paid one-half by Seller and one- half by Buyer. References in this Article 3 to the release of amounts from the Escrow Account (including the application of the Deposit to Seller.
ii. If for any reason the Closing does not occur Purchase Price pursuant to Section 3.1(b) and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent Section 3.2(b)) with income earned thereon shall give written notice be deemed to refer to the other party portion of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereonincome, if any, with remaining after the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent satisfaction in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties full of the Escrow Agent hereunder are purely ministerial in nature Agent’s fees and shall be expressly limited to the safekeeping and disposition of the Deposit expenses in accordance with the provisions of this Escrow Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Asset Purchase Agreement (Lodgenet Entertainment Corp)
Escrow. a. To insure the availability for delivery of Grantee’s unvested Shares upon cancellation and forfeiture pursuant to Section 4, Grantee hereby irrevocably appoints the Secretary of the Company or any other person designated by the Company (the “Escrow Agent”), as escrow agent and as its attorney‑in‑fact to deliver unto the Company such unvested Shares, if any, forfeited to the Company and shall, upon execution of this Agreement, deliver and deposit with the Escrow Agent, the share certificates representing the unvested Shares. The unvested Shares shall be held by the Escrow Agent shall hold and disburse in escrow until such unvested Shares become vested, or until such time as this Agreement is no longer in effect. Upon vesting of the Deposit in accordance with the following provisions:
i. If the Closing occursShares, then the Escrow Agent shall promptly deliver to Grantee the Deposit certificate or certificates representing such vested Shares in the Escrow Agent’s possession belonging to Seller.
ii. If for any reason Grantee, and the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for ; provided, however, that the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties nevertheless retain such certificate or responsibilities except those set forth in certificates as escrow agent if so required pursuant to other restrictions imposed pursuant to this Agreement Agreement. Grantee hereby irrevocably authorizes and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of directs the Escrow Agent hereunder are purely ministerial in nature to transfer the unvested Shares which have been cancelled and shall be expressly limited forfeited to the safekeeping and disposition of the Deposit in accordance with the provisions of this AgreementCompany. The Escrow Agent shall not be liable for any action taken act it may do or omitted by Escrow Agent omit to do with respect to holding the Shares in escrow and while acting in good faith and believed in the exercise of its judgment. Transferability. Unvested Shares may not be transferred in any manner. Transfer or sale of vested Shares is subject to restrictions on transfer imposed by Escrow Agent to be authorized or within its rights or powers conferred upon it by the Plan and this Agreement, except for and any damage caused by Escrow Agent's own gross negligence or willful defaultapplicable state and federal securities laws. Escrow Agent Any transferee shall not have any liability or obligation for loss of hold such Shares subject to all or any portion the provisions of the Deposit by reason Plan and of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Restricted Stock Award Agreement (Sunstone Hotel Investors, Inc.)
Escrow. a. Escrow Agent The certificates for the Restricted Stock shall hold and disburse the Deposit be deposited in accordance escrow with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment Secretary of the Deposit, Escrow Agent shall give written notice Company (or an Assistant Secretary if you are serving as Secretary) to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit held in accordance with the provisions of this Agreementparagraph. Escrow Agent Each deposited certificate shall be accompanied by a duly executed Assignment Separate from Certificate in the form attached hereto as Exhibit A. The deposited certificates shall remain in escrow until such time or times as the certificates are to be released or otherwise surrendered for cancellation as discussed below. Upon delivery of the certificates to the Company, you shall be issued an instrument of deposit acknowledging the number of shares of Stock delivered in escrow to the Secretary of the Company. All dividends or other distributions on the vested Stock (or other securities at the time held in escrow) shall be paid directly to you and shall not be liable for any action taken held in escrow. Any cash dividends on the Restricted Stock (or omitted by Escrow Agent other restricted securities at the time held in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent escrow) shall not have any liability or obligation for loss of all or any portion remain in escrow with the Secretary of the Deposit by reason of Company (or an Assistant Secretary) until such restrictions lapse as provided herein on the insolvency underlying Stock, or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent if such restrictions fail to lapse shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vireturned to the Company upon termination of your employment. In the event that of any stock dividend, stock split, recapitalization or other change affecting the Company’s outstanding common stock as a dispute shall arise class effected without receipt of consideration or in connection the event of a stock split, a stock dividend or a similar change in the Company Stock, any new, substituted or additional securities or other property which is by reason of such transaction distributed with this Agreement, or as respect to the rights Restricted Stock shall be immediately delivered to the Secretary of the parties Company (or Assistant Secretary) to be held in escrow hereunder, and to, such securities shall be subject to the same vesting and forfeiture provisions hereunder as shall apply to the underlying Restricted Stock. The shares of Stock held in escrow hereunder shall be subject to the following terms and conditions relating to their release from escrow or their surrender to the disposition ofCompany for repurchase and cancellation: • As your shares vest as described above, the Depositcertificates for such vested shares shall be released from escrow and delivered to you or to your custodian, Escrow Agent at your request, as soon as is practicable. • Upon termination of your employment, any escrowed shares in which you are at the time vested shall be promptly released from escrow. • Any escrowed certificates for vested shares of Stock subject to the Vested Stock Repurchase Obligation shall, concurrently with the payment by the Company of the purchase price for such shares of Stock, be surrendered to the Company for cancellation, and you shall have the right to: (i) hold and retain all or any part no further rights with respect to such shares of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;Stock.
Appears in 1 contract
Samples: Executive Restricted Stock Agreement (Orbimage Inc)
Escrow. a. Escrow Agent shall Any escrow agent receiving funds or documents is authorized and agrees by acceptance thereof to promptly deposit and to hold same in escrow and to disburse the Deposit same subject to clearance thereof in accordance with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
iiterms and conditions of this Agreement. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment Failure of the Deposit, Escrow Agent clearance of funds shall give written notice not excuse performance by the depositor. In the event of doubt as to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no its duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with liabilities under the provisions of this Agreement, the Escrow Agent may, in its sole discretion, continue to hold the monies which are the subject of this escrow until a judgment of a court of competent jurisdiction shall determine the rights of the parties thereto, or it may deposit all of the monies then held pursuant to this Agreement with the Clerk of the Circuit Court of Hillsborough County, Florida, which Circuit Court shall have jurisdiction of the dispute, and upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully terminate, except to the extent of accounting for any monies theretofore delivered out of escrow. In the event of any suit wherein the Escrow Agent is made a party by virtue of acting as such escrow agent hereunder, or in the event of any suit wherein Escrow Agent interpleads the subject matter of this escrow, the Escrow Against shall be entitled to recover reasonable attorneys' fees and costs incurred through all levels of proceedings, said fees and costs to be charged and assessed as court costs in favor of the prevailing party. Except for the willful misconduct or gross negligence of the Escrow Agent, all parties agree that the Escrow Agent shall not be liable for to any action taken party or omitted by person whomsoever from misdelivery to Purchaser or Seller of monies subject to this escrow, unless such misdelivery shall be due to willful breach of this Agreement or gross negligence on the part of Escrow Agent. Purchaser acknowledges that it has been advised that Escrow Agent in good faith has acted and believed by Escrow Agent is also acting herein as counsel to be authorized or within its rights or powers conferred upon it by this Agreement, except for Seller and Purchaser has no objection thereto and waives any damage caused by Escrow Agent's own gross negligence or willful defaultconflict of interest claim that Purchaser might have. Escrow Agent The foregoing paragraph shall not have any liability or obligation for loss of all or any portion of survive the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful defaultclosing.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Sale and Purchase Agreement (Dean Witter Realty Growth Properties L P)
Escrow. a. 15.1 Escrow Agent agrees that it shall hold and disburse the Deposit in escrow in accordance with the following provisions:
i. If the Closing occurs, then the terms and conditions of this Agreement. Escrow Agent shall deliver give notice to Purchaser and Seller of the bank, branch and account number of the account into which the Deposit is made promptly after making the same. Purchaser shall have the right to Sellerdirect the form of investment that will be made with the Deposit while in escrow. All interest earned on the Deposit while held in escrow shall be for the benefit and account of Purchaser and shall be considered a part of the Deposit. Purchaser shall provide such information and execute such forms as may be necessary to properly report such interest income. All interest earned on the Deposit shall be deemed part of the Deposit.
ii15.2 At the Close of Escrow the Deposit shall be paid by Escrow Agent to Seller or the Secured Party, as appropriate, or as they may otherwise direct, and applied to the Purchase Price in accordance with the terms of this Agreement, subject to any requirements to be applied to release or remove any Monetary Encumbrances, and any pro-rations or apportionments required hereunder. If the Close of Escrow shall not occur as a result of the default of Seller, the Deposit shall be paid to Purchaser if Purchaser so elects. If for any reason the Closing does not occur and either party Seller or Purchaser makes a written demand upon Escrow Agent for payment of the Deposit, or if Escrow Agent intends to pay such deposit over to either party, Escrow Agent shall give at least ten (10) business days written notice to the other party of such demanddemand and of its intention to pay over the Deposit to the other party on a stated date. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such noticepayment, Escrow Agent is hereby authorized and directed to make such payment. If any party delivers to Escrow Agent does receive such written objection within to such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentpayment before the proposed payment date, Escrow Agent shall continue to hold such amount the Deposit until otherwise directed by written instructions from the by all parties to this Agreement or a final judgment in courtdecision of a court of competent jurisdiction. HoweverIn the event of such dispute, Escrow Agent may deposit the Deposit with an appropriate court of competent jurisdiction and, after giving written notice of such action to the parties, Escrow Agent shall have no further obligations with respect to the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk Deposit.
15.3 The duties of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act are only as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
ivherein specifically provided. Escrow Agent shall be protected in relying entitled to rely upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signaturedocument, instrument or signature believed by it to be genuine and signed by either of the other document which is given to parties or their successors. Escrow Agent without verifying the truth or accuracy may assume that any person purporting to give any notice of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit instructions in accordance with the provisions of this Agreementherein, has been duly authorized to do so. Escrow Agent shall not be liable for bound by any action taken modification, cancellation or omitted rescission of this Agreement unless in writing and signed by the parties to be bound. The parties hereto shall jointly and severally reimburse and indemnify Escrow Agent for, and hold it harmless against, any and all loss, liability, costs or expenses in good faith connection herewith, including reasonable attorneys' fees and believed by Escrow Agent to be authorized disbursements, arising out of or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence acceptance of, or willful default.
vi. In the event that a dispute shall arise in connection with performance of Escrow Agent's duties and obligations under this Agreement, as well as the reasonable costs and expenses of defending against any claim or as liability arising out of or relating to this Agreement, unless the same results from Escrow Agent's negligence or breach of its obligations under this Agreement. Purchaser and Seller shall share equally in the reimbursement of Escrow Agent except in the event of litigation between the parties, in which event the party determined not to be entitled to the rights of the parties in and toDeposit shall reimburse Escrow Agent, or if the disposition ofDeposit is split between the parties, then such costs of Escrow Agent shall be split between Seller and Purchaser upon the inverse proportionate amount received by each (i.e., if a party is entitled to 90% of the Deposit, that party pays 10% of Escrow Agent's costs). Escrow Agent is acting as stakeholder only with respect to Deposit delivered to it hereunder.
15.4 Delivery or disbursement by Escrow Agent of any amount of the Deposit to be delivered or disbursed by Escrow Agent hereunder, by means of Escrow Agent's check, subject to collection, or by wire transfer to the party to whom said sum is to be delivered hereunder, shall constitute good and sufficient delivery of said sum for the purposes of this Agreement.
15.5 The parties and/or the Escrow Agent shall have be entitled to add to or supplement these escrow instructions in accordance with this Agreement and as reasonably required based upon the right to: information and reports (iincluding the Title Commitment) hold obtained by the parties and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;Agent.
Appears in 1 contract
Samples: Agreement of Purchase and Sale
Escrow. a. 1.1 On the Effective Date, (a) the Buyer shall deliver to the Escrow Agent, on behalf of each Seller, such Seller's portion of the Escrow Amount in Escrow Cash or a certificate registered in the name of "Computershare Trust Company, Inc. as Escrow Agent for the ViaSat/U.S. Monolithics Escrow dated January 4, 2002" representing such Seller's Escrow Shares, as set forth in Schedule I. The Escrow Amount, together with any cash, interest, securities or other property issued in respect thereof (including, without limitation, any capital stock issued pursuant to any stock dividend, stock split, reverse stock split, combination or reclassification of any kind) shall become part of, and is hereinafter referred to collectively as, the "Escrow Fund." The Escrow Agent shall maintain an escrow account for each Seller showing the number of Escrow Shares or the amount of Escrow Cash held by the Escrow Agent for that Seller (the "Escrow Account"). Escrow Account statements shall be mailed to the Seller Representatives following any distribution of the Escrow Fund in accordance with Section 2 of this Escrow Agreement. The Escrow Fund shall be held as a trust fund and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party hereto. The Escrow Agent shall accept delivery of the Escrow Fund and hold and disburse dispose of the Deposit Escrow Fund in escrow (the "Escrow"), subject to the terms and conditions of this Escrow Agreement. Subject to the requirements hereof, the Escrow shall be in existence immediately upon execution of this Escrow Agreement and shall terminate at 5:00 p.m. Pacific Time on the date the entire Escrow Fund has been completely disbursed in accordance with the following provisions:terms of this Escrow Agreement (the "Termination Date").
i. If 1.2 The Escrow Agent shall invest and reinvest the Closing occursEscrow Cash or any other cash portion of the Escrow Fund (including, then without limitation, any cash dividends on the Escrow Shares) at the direction of the Seller Representatives and the risk of the Sellers during the term of the Escrow. Upon written instructions signed by the Seller Representatives, the Escrow Agent shall deliver invest and reinvest the Deposit Escrow Fund in one or more of the following investments (the "Obligations") from time to Seller.time:
ii(a) Direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America;
(b) Buyer Common Stock; or
(c) A money market fund that invests solely in the securities set forth in Section 1.2(a) or repurchase agreements fully collateralized by the securities set forth in Section 1.2(a) (the "Money Market Fund"). No Obligation shall have a maturity that exceeds ninety (90) calendar days from the date of purchase. Interest and other earnings on the Obligations shall be added to and included in the definition of the Escrow Fund and shall be added to the Escrow Account of the applicable Sellers. Any loss incurred from an investment shall be borne by the Escrow Fund. Investment and reinvestment of the Escrow Fund shall be made only in Obligations. If for any reason no instructions are received by the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of from the DepositSeller Representatives, the Escrow Agent shall give written notice be deemed to have received instructions to invest the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period or if for Cash and any other reason cash portion of the Escrow Agent Fund in good faith the Money Market Fund.
1.3 The interests of the Sellers and the Buyer in the Escrow and in the Escrow Fund shall elect not be assignable or transferable, other than (a) by operation of law, (b) by the laws of descent or (c) with the prior written consent of the Buyer (which consent shall not be unreasonably withheld), by a transfer of a Seller to make a trust for estate planning purposes (or any other similar estate planning mechanism); provided, however, that no such payment, Escrow Agent assignment or transfer shall continue to hold such amount be recognized or given effect until otherwise directed by written instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give received written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunderthereof.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Escrow Agreement (Viasat Inc)
Escrow. a. Escrow Agent shall hold and disburse the Deposit in accordance with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN Within three (103) business days after the giving date of such noticeexecution of this Agreement, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in courtshall open an Escrow with Escrow Holder, at Escrow Holder's office. However, The Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. deemed opened when the parties have given Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions Holder an executed copy of this Agreement. This Agreement shall serve as escrow instructions to Escrow Agent Holder, and the parties shall execute additional instructions if Escrow Holder so requires, provided that such instructions do not be liable change the terms of this Agreement but merely offer protection for Escrow Holder. Any additional instructions shall provide that this Agreement shall prevail in case of any action taken or omitted by inconsistency between it and the additional instructions. Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it shall close on the Closing Date concurrently with the closing of the transaction contemplated by this Agreement, except and the parties acknowledge that the Bargain and Sale Deeds ("Deeds") and the Memoranda of Lease shall be deposited with Escrow Holder for recordation at the Closing Date consistent with the terms of this Agreement. When Title Company (hereinafter defined) is in a position to issue the Title Policies (hereinafter defined), and upon instructions from Seller and Buyer, Escrow Holder shall immediately close Escrow by recording the Deeds and the Memoranda of Lease in the appropriate counties. The failure of Seller or Buyer to be in a position to close Escrow by the Closing Date for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or other than failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent a condition shall be relieved and released from any liability constitute a default under this Agreement. If Escrow Holder is not in a position to close Escrow on the Closing Date, except in connection with it shall close as soon thereafter as possible, unless prior to closing, it receives notice from either party directing it not to close. Close of Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights occur when Escrow Holder performs all of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: acts listed below:
(i) hold Record the Deeds with instructions for the county recorders to send the Deeds to Buyer and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; attach tax information after recording;
(ii) deposit Record the Deposit in Memoranda of Lease with instructions for the county recorders to send the Memoranda of Lease to Buyer;
(iii) Instruct the Title Company to deliver the Title Policies to Buyer; and
(iv) Forward to Seller and Buyer an appropriate court accounting of lawall funds received and disbursed for each party and copies of all executed and recorded or filed documents, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability with recording or obligation under this Agreement;filing dates shown thereon.
Appears in 1 contract
Escrow. a. Escrow Agent shall hold and disburse the Deposit in accordance with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN Within three (103) business days after the giving date ------ of such noticeexecution of this Agreement, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in courtshall open an Escrow with Escrow Holder, at Escrow Holder's office. However, The Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. deemed opened when the parties have given Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions Holder an executed copy of this Agreement. This Agreement shall serve as escrow instructions to Escrow Agent Holder, and the parties shall execute additional instructions if Escrow Holder so requires, provided that such instructions do not be liable change the terms of this Agreement but merely offer protection for Escrow Holder. Any additional instructions shall provide that this Agreement shall prevail in case of any action taken or omitted by inconsistency between it and the additional instructions. Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it shall close on the Closing Date concurrently with the closing of the transaction contemplated by this Agreement, except and the parties acknowledge that the Bargain and Sale Deeds ("Deeds") and the Memoranda of Lease shall be deposited with Escrow Holder for recordation at the Closing Date consistent with the terms of this Agreement. When Title Company (hereinafter defined) is in a position to issue the Title Policies (hereinafter defined), and upon instructions from Seller and Buyer, Escrow Holder shall immediately close Escrow by recording the Deeds and the Memoranda of Lease in the appropriate counties. The failure of Seller or Buyer to be in a position to close Escrow by the Closing Date for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or other than failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent a condition shall be relieved and released from any liability constitute a default under this Agreement. If Escrow Holder is not in a position to close Escrow on the Closing Date, except in connection with it shall close as soon thereafter as possible, unless prior to closing, it receives notice from either party directing it not to close. Close of Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights occur when Escrow Holder performs all of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: acts listed below:
(i) hold Record the Deeds with instructions for the county recorders to send the Deeds to Buyer and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; attach tax information after recording;
(ii) deposit Record the Deposit in Memoranda of Lease with instructions for the county recorders to send the Memoranda of Lease to Buyer;
(iii) Instruct the Title Company to deliver the Title Policies to Buyer; and
(iv) Forward to Seller and Buyer an appropriate court accounting of lawall funds received and disbursed for each party and copies of all executed and recorded or filed documents, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability with recording or obligation under this Agreement;filing dates shown thereon.
Appears in 1 contract
Escrow. a. (a) Purchaser and Seller each shall promptly deposit a copy of this Agreement executed by such party (or either of them shall deposit a copy executed by both Purchaser and Seller) with Escrow Agent, and, upon receipt of the Deposit from Purchaser, Escrow Agent shall hold immediately execute this Agreement where provided below. This Agreement, together with such further instructions, if any, as the parties shall provide to Escrow Agent by written agreement, shall constitute the escrow instructions. If any requirements relating to the duties or obligations of Escrow Agent hereunder are not acceptable to Escrow Agent, or if Escrow Agent requires additional instructions, the parties hereto agree to make such deletions, substitutions and disburse additions hereto as counsel for Purchaser and Seller shall mutually approve, which additional instructions shall not substantially alter the Deposit terms of this Agreement unless otherwise expressly agreed to by Seller and Purchaser.
(b) Escrow Agent is hereby designated the "real estate reporting person" for purposes of Section 6045 of Title 26 of the United States Code and Treasury Regulation 1.6045-4 and any instructions or settlement statement prepared by Escrow Agent shall so provide. Upon the consummation of the transaction contemplated by this Agreement, Escrow Agent shall file Form 1099 information return and send the statement to Seller as required under the aforementioned statute and regulation. Seller and Purchaser shall promptly furnish their federal tax identification numbers to Escrow Agent and shall otherwise reasonably cooperate with Escrow Agent in accordance connection with the following provisions:Escrow Agent's duties as real estate reporting person.
i. If the Closing occurs, then (c) The parties acknowledge that the Escrow Agent shall deliver be conclusively entitled to rely, except as hereinafter set forth, upon a certificate from Purchaser or Seller as to how the Deposit (which, for purposes of this Section shall be deemed to Seller.
ii. If for also include any reason other escrowed funds held by the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of pursuant to this Agreement) should be disbursed. Any notice sent by Seller or Purchaser (the Deposit, "Notifying Party") to the Escrow Agent shall give written be sent simultaneously to the other noticed parties pursuant to Section 20(f) herein (the "Notice Parties"). If the Notice Parties do not object to the Notifying Party's notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN ten (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk Notice Parties' receipt of the Court of Orange CountyNotifying Party's certificate to the Escrow Agent, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, the Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iiiable to rely on the same. If the Notice Parties send, within such ten (10) days, written notice to the Escrow Agent has signed this Agreement for disputing the sole purpose of agreeing to act as Notifying Party's certificate, a dispute shall exist and the Escrow Agent in accordance with this Articleshall hold the Deposit as hereinafter provided. The parties hereto hereby acknowledge that Escrow Agent shall have no duties or responsibilities except those set forth liability to any party on account of Escrow Agent's failure to disburse the Deposit if a dispute shall have arisen with respect to the propriety of such disbursement and, in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness event of any noticedispute as to who is entitled to receive the Deposit, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit disburse them in accordance with the provisions final order of this Agreementa court of competent jurisdiction, or to deposit or interplead such funds into a court of competent jurisdiction pending a final decision of such controversy. The parties hereto further agree that Escrow Agent shall not be liable for failure to any action taken or omitted by Escrow Agent in good faith depository and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, otherwise liable except in connection with the event of Escrow Agent's gross negligence or willful default.
vimisconduct. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, The Escrow Agent shall have be reimbursed on an equal basis by Purchaser and Seller for any reasonable expenses incurred by the right Escrow Agent arising from a dispute with respect to the Deposit. The obligations of Seller with respect to the Escrow Agent are intended to be binding only on Seller and Seller's assets and shall not be personally binding upon, nor shall any resort be had to: (i) hold and retain all or , the private properties of any part of the Deposit until such dispute is settled partners, officers, directors, shareholders or finally determined by litigation, arbitrationbeneficiaries of Seller, or otherwise; (ii) deposit the Deposit in an appropriate court of lawany partners, following which Escrow Agent shall thereby and thereafter be relieved and released from officers, directors, shareholders or beneficiaries of any liability partners of Seller, or obligation under this Agreement;of any of Seller's employees or agents.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Golden Enterprises Inc)
Escrow. a. The parties agree to establish an escrow for the transfer of the Site (the “Escrow”) with an escrow agent mutually agreed upon by the parties (the “Escrow Agent”), within the time set forth in the Schedule of Performance. Sections 2.2 through 2.11 of this Agreement constitute the joint escrow instructions of the parties to the Escrow Agent, and a duplicate original of this Agreement or a copy thereof certified by the City Clerk to be true and correct, shall be delivered to the Escrow Agent upon the opening of the Site Escrow. The parties shall provide and execute such additional escrow instructions consistent with this Agreement as shall be necessary. The Escrow Agent is hereby empowered to act under this Agreement, and upon indicating its acceptance of Sections 2.2 through 2.11 in writing, delivered to the City and Hunter Fiat within five (5) calendar days after the establishment of the Escrow, shall begin to carry out its duties as Escrow Agent hereunder. At the time provided for in the Schedule of Performance, the City shall deliver to the Escrow Agent the grant deed for the Site, in substantially similar form to that attached hereto as Exhibit “F” (“Site Grant Deed”), and upon satisfaction of the Conditions for Close of the Escrow, the Escrow Agent shall hold and disburse record said Site Grant Deed in accordance with these escrow instructions, subject to the Deposit condition that the title to the Site, to the extent provided in this Agreement, can be vested in Hunter Fiat, in accordance with the terms and provisions of this Agreement. The Escrow Agent shall buy, affix and cancel any transfer stamps required by law. No insurance policies covering the Site shall be transferred by the City to Hunter Fiat. The City and Hunter Fiat shall deliver to the Escrow Agent all documents necessary for the conveyance of title to the Site, to the extent provided in this Agreement, in conformity with, within the times and in the manner provided in this Agreement. The City shall deposit in the Site Escrow the following provisionsfees, charges and costs promptly after the Escrow Agent has notified City of the amount of said fees, charges and costs, but not later than one (1) business day before the close of the Site Escrow:
i. If 1. The Escrow Agent’s fee;
2. The costs of recording the Closing occursSite Grant Deed.
3. Costs necessary to place the title to the Site in the condition for conveyance required by the provisions of this Agreement;
4. The premium for the title insurance policy to be paid by the City under Section 2.8;
5. Ad valorem taxes, then if any, upon the Site, applicable to the period before the conveyance of title; and
6. Any State, County or City documentary stamps or transfer tax. No later than one (1) business day before the close of the Site Escrow, Hunter Fiat shall deposit the Purchase Price in the form of the Dealer Note with the Escrow Agent. The Escrow Agent is authorized to:
1. Pay and charge the City and Hunter Fiat for any fees, charges and costs payable under this Section 2.2. Before the close of the Site Escrow, the Escrow Agent shall notify the parties of the estimated cost of any and all fees, charges and costs necessary to clear title and close the Site Escrow;
2. Disburse funds and deliver the Deposit Site Grant Deed and other documents to Seller.the parties entitled thereto when the conditions for close of the Site Escrow have been satisfied by the applicable party. The Dealer Note shall not be delivered by the Escrow Agent to City unless and until all conditions for the close of the Escrow have been satisfied, including the recordation of all documents required to be recorded as conditions for the close of the Escrow including, but not limited to, the Site Grant Deed, and until the Escrow Agent has delivered to Hunter Fiat the title insurance policy insuring title as provided in Section 2.8 hereof;
ii3. If for Record any reason instruments delivered through the Closing does not occur Escrow in the event necessary or proper under this Agreement and, otherwise, to vest title in Hunter Fiat in accordance with the terms and either party makes a written demand provisions of these escrow instructions; and, All funds received into Escrow shall be deposited by the Escrow Agent in an interest bearing insured account with any state or national bank doing business in the State of California, as agreed upon between the parties; provided, however, that said funds, in the aggregate, exceed Five Thousand Dollars ($5,000.00) and provided further that the parties agree that said funds shall be retained by the Escrow Agent for payment a period of at least ten (10) calendar days. Otherwise, said funds may be held by the Escrow Agent, in a non-interest bearing account, and may be combined with other escrow funds of the DepositEscrow Agent. In the event that said funds are deposited in an interest bearing account, interest shall accrue to the party who has made the deposit thereof with the Escrow Agent. In the event that the Escrow is not in condition to close on or before the time set forth in the Schedule of Performance, subject to any and all extensions authorized by this Agreement, either party who then shall have fully performed the acts to be performed before the conveyance may, in writing, demand the return of its money, papers or documents from the Escrow Agent. No demand for return of said money, papers or documents shall be recognized until ten (10) calendar days after the Escrow Agent shall give written notice has delivered copies of said demand to the other party of such demandat the address and in the manner provided for in Section 6.1. If Objections, in the event there are any, shall be raised by written notice submitted to the Escrow Agent does not receive a written objection from and to the other party to the proposed payment within TEN said ten (10) days after calendar day period, in which event the giving of such notice, Escrow Agent is hereby authorized to make such payment. If hold all money, papers and documents with respect to the Site Escrow Agent does receive such written objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentuntil further instructed by mutual agreement of the parties or, Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from upon failure of the parties to this Agreement or a final judgment in court. Howeveragree, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk then by means of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those dispute resolution set forth in this Agreement and Seller and Purchaser agree and acknowledge or by order or decree of a court of competent jurisdiction. In the event that no demands are made, the Site Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. closed as soon thereafter as possible. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for obligated to return any action taken money, papers or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreementdocuments, except for upon the written instructions of both parties, or until the party entitled thereto has been determined by a final decision resulting from the dispute resolution procedures set forth in this Agreement or by a court of competent jurisdiction. Any amendment to these escrow instructions shall be in writing and signed by both parties. At the time of the execution of any damage caused by Escrow Agent's own gross negligence or willful default. amendment to these escrow instructions, the Escrow Agent shall not have any liability or obligation for loss of all or any portion of agree to carry out its duties as Escrow Agent under such amendment. All official communications among the Deposit by reason of Escrow Agent and the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit parties shall be made in accordance with Section 6.1. The liability of the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Sections 2.2 to 2.11, inclusive, of this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Escrow. a. An escrow to consummate the sale of the Property pursuant to this Agreement (the “Escrow”) shall be opened at the offices of Fidelity National Title Company (“Escrow Agent Holder”). The date upon which Escrow Holder has received a fully executed copy of this Agreement and the Escrow is opened shall hold be referred to herein as the “Opening of Escrow”. The Escrow Holder’s contact information is set forth in Section 13 hereof. The following provisions shall apply with respect to the Escrow and disburse the Deposit in accordance with the following provisionsEscrow Holder:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
ii. (a) If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent Holder for payment delivery of the Deposit, Escrow Agent Holder shall give written notice to the other party of such demand. If Escrow Agent Holder does not receive a written objection from the other party to the proposed payment within TEN two (102) business days after the giving of such notice, Escrow Agent Holder is hereby authorized to make such delivery or payment. If Escrow Agent Holder does receive such written objection within such TEN two (102) business day period period, or if for any other reason Escrow Agent Holder in good faith shall elect not to make such payment, Escrow Agent Holder shall continue to hold such amount the Deposit until otherwise directed by it shall have received joint written instructions from the parties to this Agreement or an order from a final judgment court of competent jurisdiction. Escrow Holder shall in court. However, Escrow Agent shall addition have the right at any time to deposit tender the escrowed proceeds and interest thereon, if any, with Deposit to the clerk of the U.S. District Court of Orange County, Floridahaving jurisdiction where the Property is located. Escrow Agent Holder shall give written notice of such deposit to Seller and PurchaserBuyer. Upon such deposit, deposit Escrow Agent Holder shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. (b) Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent Holder shall have no duties responsibility to determine the authenticity or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness validity of any notice, demandinstruction, certificateinstrument, signature, instrument document or other document which is item delivered to it, and it shall be fully protected in acting in accordance with any written notice, direction or instruction given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other documentit under this Agreement and reasonably believed by it to be authentic and valid.
v. (c) The parties acknowledge that Escrow Agent Holder is acting solely as a stakeholder at their request and for their convenience, that Escrow Holder shall not be deemed to be the duties agent of either of the parties, and that Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent Holder shall not be liable to either of the parties for any action act or omission on its part unless taken or omitted suffered in bad faith, in willful disregard of this Agreement or involving gross negligence. Seller and Buyer shall jointly and severally indemnify and hold Escrow Holder harmless from and against all costs, claims and expenses, including reasonable attorneys’ fees, incurred in connection with the performance of Escrow Holder’s duties hereunder, except with respect to actions or omissions taken or suffered by Escrow Agent Holder in good faith bad faith, in willful disregard of this Agreement or involving gross negligence on the part of Escrow Holder.
(d) Escrow Holder has acknowledged agreement to these provisions by signing in the place indicated on the signature page of this Agreement.
(e) Escrow Holder is hereby designated as the “real estate reporting person” for purposes of Section 6045 of Title 26 of the United States Code and believed Treasury Regulation 1.6045 -4 and any instructions or settlement statement prepared by Escrow Agent to be authorized or within its rights or powers conferred upon it Holder shall so provide. Upon the consummation of the transaction contemplated by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful defaultHolder shall file a Form 1099 information return and send the statement to Seller as required under the aforementioned statute and regulation. Seller and Buyer shall promptly furnish their federal tax identification numbers to Escrow Agent Holder and shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository otherwise reasonably cooperate with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except Holder in connection with Escrow Agent's gross negligence or willful defaultHolder’s duties as real estate reporting person.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Purchase and Sale Agreement (RREEF Property Trust, Inc.)
Escrow. a. (a) On the Closing Date, Parent and STS on behalf of all Selling Companies will execute and deliver an Escrow Agreement substantially similar to Exhibit C attached hereto, by and among Parent, STS and the Escrow Agent (the “Escrow Agreement”), and Parent will deliver to the Escrow Agent, as agent, the Escrow Amount which shall hold and disburse be maintained in four (4) separate escrow accounts. The True-Up Reserve Amount shall be used to pay any Final Downward Adjustment related to the Deposit Closing Date Balance Sheet or the Revised Infrastructure Replacement Costs, with the balance of any amount not so used being paid as set forth in Section 3.4. The Tax Adjustment Escrow shall be used to pay any Final Downward Adjustment or Final Upward Adjustment related to the Final Tax Adjustment Amount. The Indemnification Amount shall be applied to satisfy any indemnity claims of Parent or Indemnified Parties (if any) under Article IX and, at Parent’s discretion pursuant to Section 3.4 hereof, to pay the remaining portion of any Final Downward Adjustment if the True-Up Reserve Amount is not sufficient for such payment. The Contract Waiver Escrow shall be paid to the Parent and/or the Selling Companies as provided in subsection (b) below. The Escrow Amount will be held by the Escrow Agent in available funds in accordance with the following provisions:terms and conditions of the Escrow Agreement and will be disbursed as provided in the Escrow Agreement. Any funds released from the Indemnification Amount because such amounts are no longer subject to indemnification claims shall be paid to STS.
i. If (i) The Contract Waiver Escrow shall be deposited with the Escrow Agent at Closing unless the Selling Companies deliver to the Parent prior to the Closing occurswritten consents in a form satisfactory to Parent to all of the Selling Companies Contracts identified on Schedule 3.5(b) attached hereto (the “Contract Waiver Agreements,” with such written consents referred to as the “Contract Waivers”). If all Contract Waivers are delivered by Closing, then the Contract Waiver Escrow shall be reduced to zero. If a specific Contract Waiver is delivered prior to or by Closing, the Contract Waiver Escrow shall be reduced by the specific dollar amount enumerated in Schedule 3.5(b) for that specific Contract Wavier (with such amounts referred to for each Contract Waiver Agreement as the “Contract Wavier Value”).
(ii) In the event the Selling Companies fail to obtain the Contract Waiver for any Contract Waiver Agreement prior to Closing, the Selling Companies shall have 180 days after the Closing Date (the “Contract Waiver Period”) to obtain any remaining Contract Waivers not obtained prior to Closing. Pending the obtaining of such Contract Waiver, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Parent the benefits of use of the Contract Waiver Agreement for its term (or any right or benefit arising thereunder, including the enforcement for the benefit of Parent of any and all rights of the Selling Companies against a third party thereunder). Parent shall pay or reimburse the Selling Companies for any expenses or costs owed under, and shall be entitled to retain the benefits received under, the Contract Waiver Agreement or such other arrangements during the Contract Waiver Period.
(iii) If during the Contract Waiver Period additional Contract Waivers are delivered to Parent by the Selling Companies, upon delivery of each such Contract Wavier the applicable Contract Waiver Agreement shall be included in the Assets and the Assumed Liabilities, and the parties shall promptly cause the Escrow Agent to distribute to STS the applicable Contract Waiver Value for that specific Contract Waiver Agreement.
(iv) For any Contract Waiver Agreement for which a Contract Waiver is not obtained prior to the end of the Contract Waiver Period, Parent shall, upon notice to STS, either (x) reject the assignment of such Contract Waiver Agreement, in which case such Contract Waiver Agreement shall not be an Asset or an Assumed Liability but shall be an Excluded Asset and/or a Retained Liability of the Selling Companies and the parties shall promptly cause the Escrow Agent to distribute to Parent the applicable Contract Waiver Value for that specific Contract Waiver Agreement, or (y) accept the assignment of such Contract Waiver Agreement, in which case such Contract Waiver Agreement shall be included in the Assets and the Assumed Liabilities and the parties shall promptly cause the Escrow Agent to distribute to STS the applicable Contract Waiver Value for that specific Contract Waiver Agreement.
(c) All fees, costs and expenses of the Escrow Agent shall deliver be paid one-half by the Deposit to SellerParent and one-half by the Selling Companies.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Asset Purchase Agreement (Iowa Telecommunications Services Inc)
Escrow. a. 16.1 Escrow Agent agrees that it shall hold and disburse the Deposit in escrow in accordance with the following provisions:
i. If the Closing occurs, then the terms and conditions of this Agreement. Escrow Agent shall deliver give notice to Purchaser and Seller of the bank, branch and account number of the account into which the Deposit is made promptly after making the same. Purchaser shall have the right to direct the form of investment that will be made with the Deposit while in escrow. All interest earned on the Deposit while held in escrow shall be for the benefit and account of Purchaser and shall be considered a part of the Deposit. Purchaser shall provide such information and execute such forms as may be necessary to properly report such interest income. If this Agreement is not terminated prior to the expiration of the Study Period, the Deposit shall be absolutely non- refundable to Purchaser except in the case of Seller’s breach of this Agreement or as otherwise specifically provided otherwise herein.
ii16.2 At the Close of Escrow, the Deposit shall be paid to Seller by Escrow Agent and applied to the Purchase Price in accordance with the terms of this Agreement. If for any reason the Closing does not occur and either party Seller or Purchaser makes a written demand upon Escrow Agent for payment of the Deposit, or if Escrow Agent intends to pay such deposit over to any party, Escrow Agent shall give at least five (5) business days written notice to the other party of such demanddemand and of its intention to pay over any portion of the Deposit to the other party on a stated date. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such noticepayment, Escrow Agent is hereby authorized and directed to make such payment. If such other party delivers to Escrow Agent does receive such written objection within to such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentpayment before the proposed payment date, Escrow Agent shall continue to hold such amount the Deposit until otherwise directed by written instructions from the by all parties to this Agreement or a final judgment in courtdecision of a court of competent jurisdiction. HoweverIn the event of such dispute, Escrow Agent may deposit the Deposit with an appropriate court of competent jurisdiction and, after giving written notice of such action to the parties, Escrow Agent shall have no further obligations with respect to the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk Deposit.
16.3 The duties of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act are only as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
ivherein specifically provided. Escrow Agent shall be protected in relying entitled to rely upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signaturedocument, instrument or signature believed by it to be genuine and signed by the other document which is given to party or its successors. Escrow Agent without verifying the truth or accuracy may assume that any person purporting to give any notice of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit instructions in accordance with the provisions of this Agreementherein, has been duly authorized to do so. Escrow Agent shall not be liable for bound by any action taken modification, cancellation or omitted rescission of this Agreement unless in writing and signed by the parties to be bound. The parties hereto shall jointly and severally reimburse and indemnify Escrow Agent for, and hold it harmless against, any and all loss, liability, costs or expenses in good faith connection herewith, including reasonable attorneys’ fees and believed by Escrow Agent to be authorized disbursements, arising out of or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence ’s acceptance of, or willful default.
vi. In the event that a dispute shall arise in connection with performance of Escrow Agent’s duties and obligations under this Agreement, as well as the reasonable costs and expenses of defending against any claim or as liability arising out of or relating to this Agreement, unless the same results from Escrow Agent’s negligence or breach of its obligations under this Agreement. Purchaser and Seller shall share equally in the reimbursement of Escrow Agent except in the event of litigation between the parties, in which event the party determined not to be entitled to the rights of the parties in and toDeposit shall reimburse Escrow Agent, or if the disposition ofDeposit is split between the parties, then such costs of Escrow Agent shall be split between Seller and Purchaser upon the inverse proportionate amount received by each (i.e., if a party is entitled to 90% of the Deposit, that party pays 10% of Escrow Agent’s costs). Until Closing, Escrow Agent is acting as stakeholder only with respect to Deposit delivered to it hereunder.
16.4 Delivery or disbursement by Escrow Agent of any amount of the funds to be delivered or disbursed by Escrow Agent hereunder, by means of Escrow Agent’s check, subject to collection, or by wire transfer to the party to whom said sum is to be delivered hereunder, shall constitute good and sufficient delivery of said sum for the purposes of this Agreement.
16.5 The parties and/or the Escrow Agent shall have be entitled to add to or supplement these escrow instructions in accordance with this Agreement and as reasonably required based upon the right to: information and reports (iincluding the Title Commitment) hold obtained by the parties and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Escrow. a. If this Agreement or any matter relating hereto shall become the subject of any litigation or controversy, 45 Buyer and Seller agree, jointly and severally, to hold Escrow Agent shall hold Holder free and disburse harmless from any loss or expense, except losses or 46 expenses as may arise from Escrow Holder's negligence or willful misconduct. If conflicting demands are made or notices 47 served upon Escrow Holder with respect to this Agreement, the Deposit parties expressly agree that Escrow is entitled to file a suit in accordance 48 interpleader and obtain an order from the Court authorizing Escrow Holder to deposit all such documents and monies with the following provisions:
i. If the Closing occurs49 Court, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection obtain an order from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from court requiring the parties to this Agreement or a final judgment in courtinterplead and litigate their several claims and rights among 50 themselves. HoweverUpon the entry of an order authorizing such Interpleader, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent Holder shall be relieved fully released and discharged of all further Buyer's Name: Capital Homes LLC 000 Xxxxx xx Xxxx Xx. Xxxxxxxxx, XX BUYER(S) INITIALS: / Property Address: Henderson, 89015 SELLER(S) INITIALS: / 1 from any obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying imposed upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of it by this Agreement. ; and Escrow Agent Holder shall not be liable for the sufficiency or correctness 2 as to form, manner, execution or validity of any action taken instrument deposited with it, nor as to the identity, authority or omitted by rights of any 3 person executing such instrument, nor for failure of Buyer or Seller to comply with any of the provisions of any 4 agreement, contract or other instrument filed with Escrow Agent in good faith and believed by Escrow Agent Holder or referred to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful defaultherein. Escrow Agent Holder's duties hereunder shall not have any liability or obligation for loss be 5 limited to the safekeeping of all monies, instruments or any portion of the Deposit other documents received by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit it as Escrow Holder, and for their disposition 6 in accordance with the terms of this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise an action is instituted in connection with this Agreementescrow, 7 in which ESCROW HOLDER is named as a party or as is otherwise compelled to make an appearance, all costs, expenses 8 attorney fees, and judgments ESCROW HOLDER may expend or incur in said action, shall be the rights responsibility of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;9 hereto.
Appears in 1 contract
Samples: Vacant Land Purchase Agreement
Escrow. a. (a) At the Effective Time, the Stockholder Representative shall deposit the Escrow Agent shall hold and disburse the Deposit in accordance Shares with the following provisions:
i. If the Closing occurs, then the Escrow Agent pursuant to Section 3.8 and the terms of the Escrow Agreement. The Stockholder Representative for the benefit of the Astarte Stockholders shall have all rights with respect to voting of the Escrow Shares in connection with all matters coming before a vote of the holders of shares of Tellium Common Stock. For Income Tax purposes, the parties shall treat the Astarte Stockholders as the owners of the Escrow Shares. Tellium shall deliver to the Deposit Stockholder Representative for the benefit of (and for distribution to) the Astarte Stockholders all dividends or other distributions other than dividends or distributions payable as part of any Recapitalization Transaction, which other dividends or distributions shall be paid to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment deposit into the Escrow Fund (as defined in the Escrow Agreement).
(b) Any claim by a member of the Deposit, Escrow Agent shall give written notice to Tellium Indemnified Group for indemnification and the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent resolution thereof shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for governed by the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties terms of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited Agreement, subject to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent .
(c) The stockholders of Astarte who have not properly perfected dissenters rights in accordance with the Colorado Corporation Law, by virtue of their approval of the Agreement under the Colorado Corporation Law, shall not be liable for deemed to have irrevocably constituted and appointed Xxxx Xxxx (together with any action taken or omitted by Escrow Agent permitted successor, the "Stockholder Representative") as their true and lawful -------------------------- agent and attorney-in-fact to enter into any agreement in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it connection with the transactions contemplated by this Agreement, except for including the resolution of indemnity claims under this Article X and in accordance with the Escrow Agreement, and any damage caused transactions contemplated by the Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of Agreement to exercise all or any portion of the Deposit powers, authority and discretion conferred on it under any such agreement, to waive any terms and conditions of any such agreement (other than the consideration to be received by reason the Astarte Stockholders in the Merger), to give and receive notices on their behalf and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including the defense, settlement or compromise of the insolvency any claim, action or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, proceeding for which Tellium or the disposition Surviving Corporation may be entitled to indemnification and the Stockholder Representative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in- fact. This power of attorney is coupled with an interest and is irrevocable. The Stockholder Representative shall keep the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part Astarte Stockholders reasonably informed of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court his decisions of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;a material nature.
Appears in 1 contract
Samples: Merger Agreement (Tellium Inc)
Escrow. a. The Deposit and any other sums which the parties agree shall be held in escrow, and any interest earned thereon (herein collectively called the "Escrow Agent Deposits"), shall hold be held by the Escrow Agent, in trust, and disburse the Deposit disposed of only in accordance with the following provisions:
i. (a) The Escrow Agent shall invest the Escrow Deposits in government insured interest-bearing instruments reasonably satisfactory to both Buyer and Seller or in a mutual fund with assets in excess of One Billion Dollars which invests in government-issued interest bearing instruments reasonably satisfactory as aforesaid, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, and shall promptly provide Buyer and Seller with confirmation of the investments made.
(b) If the Closing occurs, then the Escrow Agent shall deliver the Deposit to SellerEscrow Deposits to, or upon the instructions of, Seller on the Closing Date and the Escrow Deposits shall be credited on account of the Purchase Price.
ii(c) If for any reason the Closing does not occur, the Escrow Agent shall deliver the Escrow Deposits to Seller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions of this Subsection (c). If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent for payment of the DepositEscrow Deposits, the Escrow Agent shall give written notice to the other party of such demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN 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 TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentperiod, the Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement signed by Seller and Buyer or a final judgment in of a court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. (d) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties Escrow Agent shall not be deemed to be the agent of either of the Escrow Agent hereunder are purely ministerial in nature parties, and shall be expressly limited to that the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable to either of the parties for any action or omission on its part taken or omitted made in good faith, and not in disregard of this Agreement, but shall be liable for its negligent acts and for any Liabilities (including reasonable attorneys' fees and expenses) incurred by Seller or Buyer resulting from the Escrow Agent's mistake of law respecting the Escrow Agent's scope or nature of its duties. Seller and Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all Liabilities, including reasonable attorneys' fees and expenses, incurred in connection with the performance of the Escrow Agent's duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in good faith bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.
(e) Buyer shall pay any income taxes on any interest earned on the Escrow Deposits. Buyer represents and believed by warrants to the Escrow Agent that its taxpayer identification number is 00-0000000.
(f) The Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. confirm that the Escrow Agent shall not have any liability or obligation for loss of all or any portion of hold the Deposit by reason of Escrow Deposits, in escrow, and shall disburse the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this AgreementEscrow Deposits, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as pursuant to the rights provisions of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;Article 13.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pennsylvania Real Estate Investment Trust)
Escrow. a. On the Closing Date, Parent shall deposit with US Bank, N.A., which will serve as escrow agent (the “Escrow Agent”) pursuant to an Escrow Agreement substantially in the form attached hereto as Exhibit E (the “Escrow Agreement”), a portion of the Cash Consideration equal to $7,000,000 and that number of Merger Shares having a fair market value (calculated at the IPO Price) equal to $7,000,000, for the purpose of securing (i) the obligations of the Company Shareholders under Section 1.5 hereof and (ii) the indemnification obligations of the Company Shareholders set forth in Article VIII hereof (the cash and Merger Shares deposited into escrow, the “Escrow Assets”). The Escrow Assets shall not include any interest, dividends or other distributions (other than dividends or distributions of equity securities of Parent) made in respect of the Merger Shares comprising a portion thereof. Except as otherwise provided in the Escrow Agreement, the Escrow Assets shall be held by the Escrow Agent for a period ending on the Indemnification Expiration Date. The Escrow Assets shall hold be held in trust and disburse shall not be subject to any Security Interest, trustee process or any other judicial process of any creditor of any Party, and shall be held and disbursed solely for the Deposit purposes and in accordance with the following provisions:
i. If terms of the Closing occursEscrow Agreement. The costs, then fees and expenses of the Escrow Agent shall deliver be split equally between Parent and the Deposit to SellerCompany Shareholders.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment (a) The adoption of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent the approval of the Merger by the Company Shareholders shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties constitute approval of the Escrow Agreement, the Escrow Agent, the Depositary Agreement, the Exchange Agent hereunder are purely ministerial and of all of the arrangements relating thereto, including the indemnification obligations of the Company Shareholders, the placement of the Escrow Assets in nature and shall be expressly limited escrow, the appointment of the Shareholders’ Representative, the grant to the safekeeping and disposition Shareholders’ Representative of the Deposit power and authority to act on behalf of the Company Shareholders in accordance with such capacity pursuant to the provisions Escrow Agreement and the indemnification of the Shareholders’ Representative pursuant to Section 1.14 of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Escrow. a. Concurrently with the full execution of this Contract of Sale, Purchaser has delivered to Escrow Agent, a check(s) (subject to collection) in the amount of $125,000.00 as the downpayment (the "Downpayment"). Escrow Agent shall hold and disburse deposit the Deposit in accordance with the following provisions:
i. If the Closing occurs, then the Downpayment into an interest-bearing account(s) maintained at a federally insured financial institution(s). Escrow Agent shall deliver the Deposit to Seller.
iiDownpayment in accordance with this Contract of Sale, or a joint instruction signed by Seller and Purchaser, or separate instructions of like tenor signed by Seller and Purchaser, or a final judgment of a court of competent jurisdiction. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of hereby is authorized and directed to deliver the DepositDownpayment to Seller if, Escrow Agent shall give written notice to the other party of such demandas and when title closes. If Escrow Agent does not shall receive a written request by one party for the release of the escrow, Escrow Agent will give a copy thereof to the other party. If Escrow Agent shall not receive an objection from the other party to the proposed payment within TEN five (105) days after the giving of such noticebusiness days, then Escrow Agent is hereby authorized to make such paymentshall so release the Downpayment. If Escrow Agent does receive such written objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentreceives an objection, then Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement or a final judgment Downpayment in courtaccordance with the terms hereof. However, Escrow Agent shall have the right at any time to may deposit the escrowed proceeds Downpayment with a court of competent jurisdiction, and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written upon notice of such deposit to Seller and Purchaser. Upon Purchaser of such deposit, Escrow Agent shall be relieved and discharged of all have no further obligations and responsibilities responsibility or liability hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to may act as upon any instruction or other writing believed by Escrow Agent in accordance with this Articlegood faith to be genuine and to be signed or presented by the proper persons. Except as otherwise noted herein, any interest or income thereon shall be paid to the party entitled to receive the Downpayment; provided, however, that if Seller shall receive the interest at Closing then such interest shall serve as a credit against the Purchase Price. It is understood and agreed that if a check for any portion of the Downpayment shall fail to clear then Escrow Agent shall deliver the portion, if any, of the Downpayment that shall have no duties cleared (together with any interest earned thereon) to Seller and this Contract of Sale shall terminate and neither party shall have any further obligations hereunder to the other except that Seller shall be permitted to attempt to collect from Purchaser on the check that shall have failed to clear by commencing litigation or responsibilities except those set forth in this Agreement and otherwise as provided for by law. Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as merely a stakeholder at their request stakeholder, and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial shall not be liable for any act or omission unless taken or suffered in nature and shall be expressly limited to the safekeeping and disposition of the Deposit bad faith, in accordance with the provisions willful disregard of this AgreementContract of Sale or involving gross negligence. Escrow Agent shall not be liable for the failure of the institution(s) in which the Downpayment has been deposited or for establishing accounts in excess of applicable guaranty limits. Seller and Purchaser agree to indemnify and hold Escrow Agent harmless from and against any reasonable costs, claims or expenses incurred in connection with the performance of the Escrow Agent's duties hereunder, unless such costs, claims or expenses were occasioned by Escrow Agent's gross negligence, bad faith or willful disregard of this Contract of Sale. Escrow Agent shall not be bound by any agreement between Seller and Purchaser (other than this Contract of Sale), whether or not Escrow Agent has knowledge thereof, and Escrow Agent's only duties and responsibilities shall be to hold, and to dispose of, the Downpayment and interest earned thereon in accordance with this Contract of Sale. Escrow Agent may consult with counsel, and any opinion of counsel shall be full and complete authorization and protection in respect to any action taken or omitted by Escrow Agent hereunder in good faith and believed by Escrow Agent in reliance upon such opinion. All instructions or notices given to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved in writing and released from any liability under delivered in accordance with the requirements of this AgreementContract of Sale. For purposes of this paragraph, such instructions and notices shall be deemed delivered on the date of delivery, if by hand, or on the date of mailing if mailed, except in connection with Escrow Agent's gross negligence that no instruction or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as notice to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which be deemed effectively delivered to Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;until actual receipt thereof by Escrow Agent.
Appears in 1 contract
Samples: Contract of Sale (BRT Realty Trust)
Escrow. a. Escrow Agent shall hold and disburse the Deposit in accordance with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN 6.1 Within five (105) days after the giving execution of this Agreement, Seller and Buyer shall open an interest bearing escrow at First American Title Insurance Company ("Escrow Holder"), through which the purchase and sale of the Property shall be consummated. Executed counterparts of this Agreement shall be deposited with Escrow Holder to act as escrow instructions to Escrow Holder, and Escrow Holder is hereby appointed and designated to act as an escrow holder and is authorized and instructed to deliver, pursuant to the terms of this Agreement, the documents and monies to be deposited into the escrow, with the following terms and conditions to apply to such notice, escrow:
(A) Escrow Agent Holder is hereby authorized and instructed to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom conduct the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from applicable law, and, to the extent not in conflict with any liability under of the provisions of this Agreement, except in connection accordance with the custom and practice in the community. Escrow AgentHolder shall comply with any reporting requirements of the Internal Revenue Code. Buyer shall employ, at its sole expense, an attorney admitted to practice in the State of Georgia to perform those closing functions that a Georgia escrow holder does not customarily perform and also to perform any title and deed inspection and other duties that Buyer elects to have its attorney perform. The parties hereby acknowledge that it may be customary practice in the State of Georgia for the Buyer's gross negligence or willful defaultattorney, rather than an escrow holder, to perform such functions as the preparation of proration and closing statements and various other documents that are required for the closing and the agree that this Agreement should be construed to permit Buyer's attorney to perform those functions. Seller may also elect to employ, at its sole expense, an attorney admitted to practice in the State of Georgia to perform any duties that Seller elects to have its attorney perform.
vi. In (B) The opening of escrow shall be the event that a dispute shall arise in connection with this Agreement, or as to date upon which Escrow Holder receives copies of the rights Agreement signed by all of the parties hereto.
(C) Escrow shall close on October 31, 1996 (the Expected Closing Date.
(D) Seller and Buyer shall, during the escrow period, execute any and all documents and perform any. and all acts reasonably necessary or appropriate to consummate the purchase and sale of the Property pursuant to the terms of the transaction set forth in this Agreement. In particular, Seller and Buyer shall execute any amendments hereto or other documents determined to be required by state or local law or procedures.
(E) Upon satisfaction or waiver of the contingencies specified in Sections 3.2, 3.3 and 5.1 and the expiration of the applicable periods under Sections 5.2 and 5.5 without termination of this Agreement by Buyer, Seller shall deposit into the escrow a fully executed and notarized warranty deed complying with Section 3.4 and the other provisions hereof. Seller shall do this not later than October 31, 1996, and shall also by that date deposit into the escrow:
(1) An Assignment of all of Seller's right, title and interest in and toto the Leases in effect at the Closing, or and of all security deposits and prepaid rents made by the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;tenants thereunder.
Appears in 1 contract
Escrow. a. The Deposit (if any) and any other sums which the parties agree shall be held in escrow, and any interest earned thereon (herein collectively called the "Escrow Agent Deposits"), shall hold be held by the Escrow Agent, in trust, and disburse the Deposit disposed of only in accordance with the following provisions:
i. (a) The Escrow Agent shall invest the Escrow Deposits, if in cash, in government insured interest-bearing instruments reasonably satisfactory to both Buyer and Seller or in a mutual fund with assets in excess of One Billion Dollars which invests in government-issued interest bearing instruments reasonably satisfactory as aforesaid, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, and shall promptly provide Buyer and Seller with confirmation of the investments made.
(b) If the Closing occurs, then the Escrow Agent shall deliver the Deposit Escrow Deposits to, or upon the instructions of, Seller on the Closing Date and the Escrow Deposits shall be credited on account of the Purchase Price. If in the form of a letter of credit, such letter of credit shall be surrendered to SellerBuyer.
ii(c) If for any reason the Closing does not occur, the Escrow Agent shall deliver the Escrow Deposits to Seller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions of this Subsection (c). If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent for payment of the DepositEscrow Deposits, the Escrow Agent shall give written notice to the other party of such demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN 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 TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentperiod, the Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement signed by Seller and Buyer or a final judgment in of a court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. (d) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties Escrow Agent shall not be deemed to be the agent of either of the Escrow Agent hereunder are purely ministerial in nature parties, and shall be expressly limited to that the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable to either of the parties for any action or omission on its part taken or omitted made in good faith, and not in disregard of this Agreement, but shall be liable for its negligent acts and for any Liabilities (including reasonable attorneys' fees and expenses) incurred by Seller or Buyer resulting from the Escrow Agent's mistake of law respecting the Escrow Agent's scope or nature of its duties. Seller and Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all Liabilities, including reasonable attorneys' fees and expenses, incurred in connection with the performance of the Escrow Agent's duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in good faith bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.
(e) Buyer shall pay any income taxes on any interest earned on the Escrow Deposits. Buyer represents and believed by warrants to the Escrow Agent that its taxpayer identification number is ______________________.
(f) The Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. confirm that the Escrow Agent shall not have any liability or obligation for loss of all or any portion of hold the Deposit by reason of Escrow Deposits, in escrow, and shall disburse the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this AgreementEscrow Deposits, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as pursuant to the rights provisions of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;Article 13.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pennsylvania Real Estate Investment Trust)
Escrow. a. (a) The Deposit shall be held by the Escrow Agent pursuant to the provisions of this paragraph 7. The Escrow Agent shall hold the proceeds thereof in escrow and disburse the Deposit dispose of such sums only in accordance with the following provisions:
i. provisions of this Agreement. If any portion of the Closing occursDeposit required to be delivered to the Escrow Agent after such execution and delivery is not received by the Escrow Agent when due or is not in the form required to be delivered pursuant to this Agreement, then the Escrow Agent shall deliver immediately notify Seller thereof.
(b) The Escrow Agent may place the Deposit in (i) certificates of deposit issued by a bank with FDIC insurance, (ii) U.S. Treasury bills or other similar securities or (iii) a segregated FDIC insured bank account. Escrow Agent need not hold such proceeds in an interest bearing account, but if any interest is earned thereon, such interest shall be paid to the party entitled to receive the Deposit simultaneously with disbursement of the Deposit. The party receiving such interest shall pay any income taxes thereon. At the Closing, the Deposit and the interest thereon, if any, shall be paid by Escrow Agent to Seller.
ii. If for any reason the Closing does has not occur occurred, and either party makes a written demand upon Escrow Agent for payment of such amount stating the Depositbasis for such demand, Escrow Agent shall give written notice to the other party of such demanddemand along with a copy thereof. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) 15 days after the giving of such noticenotice by Escrow Agent which objection states the basis therefor, Escrow Agent is hereby authorized to make such paymentpayment to the demanding party. If Escrow Agent does receive such written objection within such TEN (10) 15-day period period, 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 instructions from the parties to this Agreement or a final judgment in courtof a court and shall disburse said funds accordingly. Escrow Agent shall send a copy of the objection to the original demanding party. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court court of Orange Countythe county in which the Real Property is located or with the clerk of the court in which any litigation between Seller and Buyer is pending or in any other court which Escrow Agent may select in the New York metropolitan area in an action for interpleader, Floridaall costs thereof to be borne by whichever of Seller or Buyer is the losing party. Escrow Agent shall give written notice of such deposit to Seller and PurchaserBuyer. Upon such depositdeposit or payment pursuant to this Agreement, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. (c) The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, ; that Escrow Agent shall not be deemed to be the duties agent of either of the parties; and that Escrow Agent hereunder are purely ministerial shall not be liable to either party for any act or omission on its part unless taken or suffered in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions willful disregard of this Agreement. Escrow Agent shall not be liable for may act upon any action taken instrument or omitted by Escrow Agent in good faith and writing believed by the Escrow Agent to be authorized or within its rights or powers conferred upon it genuine and to be signed and presented by this Agreementthe proper party. Seller and Buyer shall jointly and severally indemnify and hold Escrow Agent harmless from and against all costs, except for any damage caused by claims and expenses, including reasonable attorneys' fees (including the value of same if Escrow Agent represents itself) incurred in connection with the performance of Escrow Agent's own gross negligence or willful defaultduties hereunder. Escrow Agent shall have no duties or responsibilities except those expressly set forth in this Agreement. The Escrow Agent shall not be bound by any modification of this Agreement unless same is in writing, signed by Seller and Buyer and delivered to Escrow Agent and if Escrow Agent's duties are affected thereby, unless Escrow Agent shall have given prior written consent thereto. If Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions from Buyer or Seller which, in Escrow Agent's opinion, are in conflict with any liability or obligation for loss of all or any portion of the provisions hereof, the Escrow Agent shall be entitled to hold or apply the Deposit pursuant to subparagraph b hereof and may decline to take any other action.
(d) The Deposit shall be deposited by reason the Escrow Agent into an interest-bearing bank account. The Escrow Agent shall hold the Deposit in such account until the closing, at which time the Deposit shall be released to Seller and credited against the Purchase Price, or until such time as the Escrow Agent receives:
(i) A written notice signed by Buyer and Seller directing it to release the Deposit to the party specified in such notice, at which time the Escrow Agent shall release the Deposit to the party specified in such notice; or
(ii) A written notice signed by Seller directing it to release the Deposit to Seller based upon Buyer's breach of this Agreement;
(iii) A written notice of Buyer certifying that the Additional Deposit has not been made and that therefore this Agreement has been terminated pursuant to subparagraph 4(b) above), the Due Diligence Termination Date;
(iv) Such other documentation as shall be specified in a writing among Escrow Agent, Buyer and Seller; or
(v) A final order, judgment or decree of a court directing the disposition of the insolvency or failure of Deposit, at which time the institution of depository with whom the escrow account is maintained. Upon the disbursement of Escrow Agent shall release the Deposit in accordance with this Agreementsuch order, judgment or decree.
(e) The Escrow Agent shall be relieved make reasonable efforts to ascertain the genuineness of any signature and released from the validity or collectibility of any liability check. However, the Escrow Agent may reasonably rely upon the validity of any judgment, order, decree, certificate, notice, request, consent, statement or other instrument delivered to it in connection with its activities as escrow agent under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Maxus Realty Trust Inc)
Escrow. a. Escrow Agent shall Holder is authorized and agrees by acceptance hereof to promptly deposit and to hold and disburse the Deposit received by it in escrow and to disburse same subject to clearance thereof in accordance with the following provisions:
i. If the Closing occurs, then the terms and conditions of this Agreement. Escrow Agent Holder shall deliver not disburse the Deposit to except upon the prior written approval signed by the Buyer Representative (or other authorized officer of Buyer) and the Seller Representative (or Seller.
ii's Counsel). If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment Failure of the Deposit, Escrow Agent clearance of funds shall give written notice not excuse performance by the depositor. In the event of doubt as to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no its duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with liabilities under the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent Holder may, in its sole discretion, continue to hold the monies which are the subject of this escrow until a judgment of a court of competent jurisdiction shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to determine the rights of the parties in and tothereto, or it may deposit all of the disposition ofmonies then held pursuant to this Agreement with the Clerk of the Circuit Court of Dade County, Florida, and upon notifying all parties concerned of such action, all liability on the Depositpart of Escrow Holder shall fully terminate, except to the extent of accounting for any monies theretofore delivered out of escrow. In the event of any suit wherein Escrow Holder is made a party by virtue of acting as such Escrow Holder hereunder, or in the event of any suit wherein Escrow Holder interpleads the subject matter of this escrow, Escrow Agent Holder shall be entitled to recover reasonable attorneys' fees and costs incurred through all levels of proceedings, said fees and costs to be charged and assessed as court costs in favor of the prevailing party. All parties agree that Escrow Holder shall not be liable to any party or person whomsoever from misdelivery to Buyer or Seller of monies subject to this escrow, unless such misdelivery shall be due to willful breach of this Agreement, or gross negligence on the part of Escrow Holder. The Epicure Parties acknowledge that Escrow Holder has acted and is also acting herein as counsel to the Buyer and the Epicure Parties have the right to: (i) hold and retain all no objection thereto, with respect to this Agreement, any dispute arising herefrom or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;other matter.
Appears in 1 contract
Escrow. a. 23.1 Escrow Agent shall hold the Downpayment, together with all interest earned thereon, in its interest bearing escrow account (provided that Seller and disburse Purchaser shall each provide Escrow Agent with a W-9 form and an Order to Invest), or the Deposit Downpayment LC, as the case may be in accordance with the following provisionsfollowing:
i. 23.1.1 Escrow Agent shall hold the Downpayment, together with all interest earned thereon, in Escrow Agent’s escrow account at JPMorgan Chase Bank, NA, and shall cause the Downpayment to earn interest at JPMorgan Chase Bank, NA’s then prevailing insured money market rates on trust account deposits of similar size. Escrow Agent shall have no liability for any fluctuations in the interest rate paid by JPMorgan Chase Bank, NA on the Downpayment, and is not a guarantor thereof.
23.1.2 If Escrow Agent receives a written notice signed by both Seller and Purchaser stating that the Closing occurshas occurred and that Seller is entitled to receive the Downpayment or Purchaser is entitled to receive the Downpayment LC, then as the case may be, Escrow Agent shall deliver the Deposit Downpayment, together with the interest earned thereon to Seller.
iiSeller or the Downpayment LC to Purchaser, as the case may be. If for any reason the Closing does not occur and either party makes Escrow Agent receives a written demand upon Escrow Agent for payment of the Depositnotice signed by both Seller and Purchaser that this Agreement has been terminated or canceled, Escrow Agent shall give deliver the Downpayment, together with the interest thereon or the Downpayment LC as directed therein.
23.1.3 If Escrow Agent receives a written notice 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 Downpayment or the Downpayment LC, 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 mail (by certified mail, return receipt requested) a copy of such demandrequest to the Non-Noticing Party. The Non-Noticing Party shall have the right to object to such request for the Downpayment or the Downpayment LC, as the case may be, 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 does shall not receive have so received a written notice of objection from the other party to the proposed payment within TEN (10) days after the giving of such noticeNon-Noticing Party, Escrow Agent is hereby authorized shall deliver the Downpayment, together with the interest earned thereon or the Downpayment LC, as the case may be, to make such paymentthe Noticing Party. If Escrow Agent does receive such shall have received a written notice of objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentthe 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 LC, as the case may be, until Escrow Agent receives either (a) a written notice signed by both Seller and Purchaser stating who is entitled to the Downpayment (and interest) or the Downpayment LC, as the case may be, or (b) a final order of a court of competent jurisdiction directing disbursement of the Downpayment (and interest) or the Downpayment LC, 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 LC, as the case may be, in accordance with such amount 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 Seller and/or Purchaser, or from Seller and/or Purchaser 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 LC, as applicable, a written notice signed by either Seller or Purchaser disputing entitlement to the Downpayment or delivery of the Downpayment LC, as applicable, or shall otherwise directed by written instructions from believe in good faith at any time that a disagreement or dispute has arisen between the parties hereto over entitlement to this Agreement the Downpayment or a final judgment in court. Howeverdelivery of the Downpayment LC, as applicable (whether or not litigation has been instituted), Escrow Agent shall have the right at any time right, upon written notice to both Seller and Purchaser, (a) to deposit the escrowed proceeds and Downpayment, together with the interest thereonearned thereon or delivery of the Downpayment LC, if anyas applicable, with the clerk 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 Orange Countythe Downpayment, Florida. Escrow Agent shall give written notice together with the interest earned thereon, with a court of such deposit competent jurisdiction and the commencement of an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party, and Purchaser. Upon such deposit, thereupon Escrow Agent shall be relieved released of and discharged of from all further obligations and responsibilities hereunderliability hereunder except for any previous gross negligence or willful misconduct.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that 23.4 Escrow Agent is acting solely hereunder without charge as a stakeholder at their request an accommodation to Purchaser and for their convenienceSeller, it being understood and agreed that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken error in judgment or any act done or omitted by Escrow Agent it in good faith and believed by Escrow Agent or pursuant to be authorized court order, or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence mistake of fact or willful defaultlaw. Escrow Agent shall not have incur any liability in acting upon any document or obligation instrument believed thereby to be genuine. Escrow Agent is hereby released and exculpated from all liability hereunder, except only for loss willful misconduct or gross negligence. Escrow Agent may assume that any person purporting to give it any notice on behalf of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintainedparty has been authorized to do so. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall not be relieved liable for, and released from Purchaser and Seller hereby jointly and severally agree to indemnify Escrow Agent against, any loss, liability or expense, including reasonable attorney’s fees (paid to retained attorneys) arising out of any dispute under this Agreement, except in connection with Escrow Agent's gross negligence or willful defaultincluding the cost and expense of defending itself against any claim arising hereunder.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Mack Cali Realty Corp)
Escrow. a. By signing below, Seller further consents and authorizes Attorney to hold $ .00 (“$250.00” if blank) (the “Escrow Agent Deposit”) in escrow from the proceeds of sale and/or from Seller’s funds that are presently available to Attorney, for payment of all unpaid taxes, Liens, water, pure water and/or sewer use charges attributable to the Property through the Closing or as otherwise provided in an agreement between Seller and Buyer. The duties of Attorney with respect to the Escrow Deposit shall hold and disburse be determined solely by the Deposit in accordance with the following provisionsfollowing:
i. If the Closing occurs, then the 1. The Escrow Agent Deposit shall deliver the Deposit be placed in Attorney’s “XXXX” trust account and no interest shall be paid on such funds to Seller.
ii2. Seller acknowledges that Attorney is acting solely as a stakeholder at Seller’s request and for Seller’s convenience and Attorney shall not be liable to Seller for any act or omission on its part unless taken or suffered in bad faith or in willful disregard of this Consent for Guarantee of Attorney or involving gross negligence on the part of Attorney.
3. If for there is any reason dispute or doubt as to whether Seller is entitled to the Closing does not occur Escrow Deposit, Attorney shall hold the Escrow Deposit until Seller and either party makes Attorney enter into a written demand upon Escrow Agent for payment agreement regarding the release of the DepositEscrow Deposit and/or a final, Escrow Agent shall give written notice to the other party non-appealable judgment, order or decree of such demanda court.
4. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent Attorney shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, Escrow Deposit with the clerk of a court in the Court of Orange Countycounty in which the Property is located, Florida. Escrow Agent whether or not pursuant to an interpleader action, and shall give written notice of such deposit to Seller Seller. Furthermore, Attorney may, at any time, take such affirmative steps as Attorney may elect in order to substitute an impartial party to hold the Escrow Deposit and Purchaserto terminate its duties herein. Upon such depositdeposit or other disbursement in accordance with the terms of this Section, Escrow Agent Attorney shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii5. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent Attorney shall not be liable for any action mistake of fact or of law or for any error of judgment or for any acts or omissions of any kind with respect to the Escrow Deposit, unless taken or omitted by Escrow Agent suffered in good faith and bad faith, in willful disregard of this Consent or involving gross negligence on the part of Attorney.
6. Attorney shall be entitled to rely on any instrument or signature believed by Escrow Agent Attorney to be genuine and may assume that any person purporting to give any writing, notice or instruction in connection with taxes, Liens, water and/or sewer use charges attributable to the Property is duly authorized to do so by the party on whose behalf such writing, notice or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account instruction is maintainedgiven.
7. Upon the expiration of ninety (90) days from the date of Closing, Attorney shall have the right to release the Escrow Deposit to Seller. Upon such deposit or other disbursement of the Deposit in accordance with the terms of this AgreementSection, Escrow Agent Attorney shall be relieved and released from any liability under this Agreement, except discharged of all further obligations and responsibilities hereunder. Seller: Date: Attorney: Date: By: Its:
1. Mortgage in connection with Escrow Agent's gross negligence or willful defaultthe amount of $ and interest made by to dated and recorded in the County Clerk’s Office on (in Liber of Mortgages at Page ) (as Document No. ).
vi2. In Mortgage in the event that a dispute shall arise amount of $ and interest made by to dated and recorded in connection with this Agreement, or the County Clerk’s Office on (in Liber of Mortgages at Page ) (as to Document No. ).
3. Lien in the rights amount of $ and interest held by filed in the parties County Clerk’s Office on .
4. Lien in the amount of $ and to, or interest held by filed in the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;County Clerk’s Office on .
Appears in 1 contract
Samples: Closing Guarantee
Escrow. a. (a) Escrow Agent shall hold and disburse the Deposit in accordance Account No. 1117011966 has been opened with the following provisions:
i. If Title Company and the Closing occurs, then parties shall provide escrow instructions consistent with this Section to the Escrow Agent shall deliver Title Company prior to the Deposit to Sellerclose of escrow.
ii. If for (b) SELLER shall bear the cost of any reason transfer taxes, recording fees, title insurance, reconveyance fees, mortgage prepayment penalty, escrow fees and any other closing costs incidental to the Closing does not occur and either party makes a written demand upon Escrow Agent for payment conveying of the Deposit, Escrow Agent shall give written notice Property to CITY.
(c) Any delinquent taxes on the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent Property shall be relieved and discharged paid in full by SELLER on or before the close of all further obligations and responsibilities hereunder.
iiiescrow. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent Taxes, not yet delinquent, shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit paid by SELLER in accordance with the provisions of California Revenue and Tax Code ("Code") Section 5086. CITY shall have no responsibility to reimburse SELLER for any taxes SELLER paid which are allocable to that part of the fiscal year that begins on the date of apportionment determined pursuant to Code Section 5082. SELLER shall be solely responsible for seeking any refund, for which SELLER may be eligible, under Code Section 5096.7.
(d) Prior to the close of escrow each party shall have also deposited such funds, if any, as may be required to pay its share of prorations and closing costs pursuant to this Agreement. Escrow Agent .
(e) In closing escrow, the Title Company shall not be liable for any action taken or omitted by Escrow Agent promptly undertake all of the following in good faith and believed by Escrow Agent the manner indicated:
(i) cause the Grant Deed to be authorized or within its rights or powers conferred upon it by this Agreementrecorded in the Official Records of Santa Xxxxx County, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss State of all or any California.
(ii) disburse the cash portion of the Deposit Purchase Price deposited with escrow holder by reason CITY to SELLER.
(iii) disburse and deliver to such persons or entities any and all other funds and documents which Title Company is authorized or required to deliver or distribute pursuant to these, or any additional escrow instructions. SELLER and CITY hereby agree, upon request of the insolvency Title Company, to execute and deliver to escrow holder such other specific or failure of the institution of depository with whom the general escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except instructions which escrow holder may reasonably require in connection with Escrow Agent's gross negligence or willful defaultthe performance of its obligations hereunder.
vi. In the event that (iv) record a dispute shall arise memorandum of option to lease in connection with this Agreement, or as to the rights favor of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;SELLER.
Appears in 1 contract
Samples: Purchase Agreement
Escrow. a. (a) The Downpayment and any interest earned thereon, upon Escrow Agent’s receipt and collection thereof, shall be held in an interest bearing account at a commercial bank having an office in Manhattan and, at Seller’s option, will be invested in United States Treasury bills or notes or other short term obligations (approved by both parties in their sole discretion) with appropriate maturities prior to the scheduled Closing Date.
(b) Except as otherwise set forth in this Agreement, the interest, if any, earned on the Downpayment shall be delivered with the Downpayment to the person or persons entitled thereto pursuant to the terms of this Article 30. Escrow Agent shall hold and disburse not be responsible for (i) any interest earned on the Deposit Downpayment except for such interest as is actually earned or (ii) the loss of any interest resulting from the withdrawal of any interest-bearing investment prior to maturity or the date interest is posted on such investment.
(c) Escrow Agent shall deliver the Downpayment in accordance with the following provisionsfollowing:
i. (i) If Purchaser shall assert that this Agreement shall have been terminated in accordance with the Closing occursterms and conditions thereof, and that it is entitled to the return of the Downpayment, then Purchaser shall deliver a written notice to Escrow Agent instructing Escrow Agent to deliver the Downpayment to Purchaser. Escrow Agent shall promptly send a copy of such notice to Seller and in the event that within five (5) Business Days of such notice being given to Seller, Seller shall not have (i) delivered a written objection to Escrow Agent or (ii) commenced an action to restrain the release of the Downpayment and served upon Escrow Agent the pleadings in such action, then Escrow Agent shall promptly deliver the Downpayment to Purchaser.
(ii) If Seller shall assert that this Agreement shall have been terminated in accordance with the terms and conditions thereof, and that the Downpayment shall have been forfeited by Purchaser, then Seller shall deliver a written notice to Escrow Agent instructing Escrow Agent to deliver the Downpayment to Seller. Escrow Agent shall promptly send a copy of such notice to Purchaser and in the event that within five (5) Business Days of such notice being given to Purchaser, Purchaser shall not have (i) delivered a written objection to Escrow Agent or (ii) commenced an action to restrain the release of the Downpayment and served upon Escrow Agent the pleadings in such action, then the Escrow Agent shall promptly deliver the Deposit Downpayment to Seller.
ii. (iii) If for any reason the Closing does not occur under this Agreement shall occur, Seller and either party makes Purchaser shall deliver jointly a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from at such Closing instructing Escrow Agent to deliver the other party Downpayment to the proposed payment within TEN Seller (10or as Seller may direct in writing) days after the giving and, upon receipt of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN shall do so.
(10iv) day period Upon its receipt of any objection, notice or if demand for any other reason Escrow Agent in good faith shall elect not to make such paymentthe Downpayment delivered by Seller or Purchaser, Escrow Agent shall promptly deliver a copy thereof to the other party.
(d) In the event any disagreement or dispute shall arise between or among any of the parties hereto and/or any other persons resulting in adverse claims and demands being made for the Downpayment, then, at Escrow Agent’s option (i) Escrow Agent may refuse to comply with any claims or demands on it and continue to hold such amount the Downpayment until otherwise directed (a) Escrow Agent receives written notice signed by written instructions from Seller, Purchaser and any other person who may have asserted a claim to or made a demand for the parties to this Agreement Downpayment directing the disbursement of the Downpayment, in which event Escrow Agent shall then disburse the Downpayment in accordance with said direction, or (b) Escrow Agent receives a certified copy of a final and non- appealable judgment of a court of competent jurisdiction directing the disbursement of the Downpayment, in court. Howeverwhich event Escrow Agent shall then disburse the Downpayment in accordance with said direction; or (ii) in the event Escrow Agent shall receive a written notice advising that a litigation over entitlement to the Downpayment has been commenced, Escrow Agent shall have the right at any time to may deposit the escrowed proceeds and interest thereon, if any, Downpayment with the clerk of the Court court in which said litigation is pending; or (iii) Escrow Agent may deposit the Downpayment in a court of Orange Countycompetent jurisdiction by the commencement of an action for interpleader, Floridathe costs thereof to be borne by whichever of Seller and Purchaser is the losing party.
(e) Escrow Agent shall not be or become liable in any way or to any person for its refusal to comply with adverse claims and demands being made for the Downpayment. Escrow Agent shall give written notice not be responsible for any act or failure to act on its part nor shall it have any liability under this Article 30 or in connection herewith except in the case of such deposit to Seller and Purchaserits own willful misconduct or gross negligence. Upon such deposit, Escrow Agent shall be relieved automatically released from all responsibility and discharged liability hereunder upon Escrow Agent’s delivery or deposit of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent Downpayment in accordance with the provisions of this ArticleArticle 30.
(f) It is expressly understood that Escrow Agent acts hereunder as an accommodation to Seller and Purchaser and as a depository only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of any instrument deposited with it, or for the form of execution of such instruments, or for the identity, authority or right of any person executing or depositing the same, or for the terms and conditions of any instrument pursuant to which Escrow Agent or the parties may act.
(g) The duties of Escrow Agent are purely ministerial. The Escrow Agent shall not have no any duties or responsibilities except those set forth in this Agreement Article 30 and shall not incur any liability in acting upon any signature, notice, request, waiver, consent, receipt or other paper or document believed by Escrow Agent to be genuine, and Escrow Agent may assume that any person purporting to give it any notice on behalf of any party in accordance with the provisions hereof has been duly authorized to do so.
(h) Escrow Agent may act or refrain from acting in respect of any matter referred to herein in full reliance upon and by and with the advice of counsel which may be selected by it and shall be fully protected in so acting or refraining from acting upon the advice of such counsel.
(i) Purchaser and Seller hereby jointly and Purchaser severally agree to indemnify and acknowledge that save Escrow Agent shall act harmless from any and all loss, damage, claims, liabilities, judgments and other cost and expense of every kind and nature which may be incurred by Escrow Agent arising out of its acting as Escrow Agent hereunder as a depository only(including, without limitation, reasonable attorneys’ fees and disbursements) except in the case of its own willful misconduct or gross negligence.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. (j) The parties acknowledge that Escrow Agent is acting solely acting, and shall continue to act, as a stakeholder at their request counsel to Seller in connection with this agreement and for their convenience, other matters. The parties agree that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition or any member or employee of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable permitted to act as counsel for Seller in any action taken dispute or omitted by Escrow Agent in good faith and believed by Escrow Agent question as to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with Downpayment or any other matter arising hereunder.
(k) The provisions of this Article 30 shall survive the Closing or the termination of this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Contract of Sale
Escrow. a. Any Escrow Agent shall receiving funds is authorized and agrees by acceptance thereof to promptly deposit and to hold same in escrow and to disburse the Deposit same subject to clearance thereof in accordance with terms and conditions of this Agreement. Failure of clearance of funds shall not excuse performance by the following provisions:
i. If PURCHASER. In the Closing occurs, then the Escrow Agent shall deliver the Deposit event of doubt as to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no its duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with liabilities under the provisions of this Agreement, the Escrow Agent may, in its sole discretion, continue to hold the monies which are the subject of this escrow until the parties mutually agree to the disbursement thereof, or until a judgment of a court of competent jurisdiction shall determine the rights of the parties thereto, or it may deposit all the monies then held pursuant to this Agreement with the Clerk of the Circuit Court of Broward County, Florida, and upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully terminate, except to the extent of accounting for any monies theretofore delivered out of escrow. In the event of any suit between PURCHASER and SELLER wherein the Escrow Agent is made a party by virtue of acting as such Escrow Agent hereunder, or in the event of any suit wherein Escrow Agent interpleads the subject matter of this escrow, the Escrow Agent shall be entitled to recover a reasonable attorney’s fee and costs incurred, said fees and costs to be charged and assessed as court cost in favor of the prevailing party. All parties agree that the Escrow Agent shall not be liable to any party or person whomsoever for any action taken misdelivery to PURCHASER or omitted by Escrow Agent in good faith and believed by Escrow Agent SELLER of monies subject to this escrow, unless such misdelivery shall be authorized due to willful breach of this Agreement or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of on the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit Escrow Agent. PURCHASER acknowledges that Xxxxxx Agent has been retained as counsel for the Deposit SELLER in an appropriate court of law, following which this matter and other matters and agrees that Escrow Agent shall thereby may continue to represent SELLER in this matter and thereafter be relieved any and released all present and future matters including any dispute resulting in litigation arising from any liability or obligation under the obligations set forth in this Agreement;.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Escrow. a. Escrow Agent If the Restricted Stock is certificated, the certificates for the Restricted Stock shall hold and disburse the Deposit be deposited in accordance escrow with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment Secretary of the Deposit, Escrow Agent shall give written notice Corporation to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit held in accordance with the provisions of this Agreementparagraph. Escrow Agent Each deposited certificate shall be accompanied by a duly executed Assignment Separate from Certificate in the form attached hereto as Exhibit B. The deposited certificates shall remain in escrow until such time or times as the certificates are to be released or otherwise surrendered for cancellation as discussed below. Upon delivery of the certificates to the Corporation, you shall be issued an instrument of deposit acknowledging the number of shares of Stock delivered in escrow to the Secretary of the Corporation. If so noted on the cover page, all regular cash dividends on the Stock (or other securities at the time held in escrow) shall be paid directly to you and shall not be liable for held in escrow. However, in the event of any action taken stock dividend, stock split, recapitalization or omitted other change affecting the Corporation’s outstanding common stock as a class effected without receipt of consideration or in the event of a stock split, a stock dividend or a similar change in the Corporation Stock, any new, substituted or additional securities or other property which is by Escrow Agent in good faith and believed by Escrow Agent reason of such transaction distributed with respect to the Stock shall be immediately delivered to the Secretary of the Corporation to be authorized held in escrow hereunder, but only to the extent the Stock is at the time subject to the escrow requirements hereof. The release of any vested shares (or other vested assets and securities) from escrow shall be effected within its rights or powers conferred upon it by thirty (30) days following the date on which such shares first become vested. Withholding Taxes You agree, as a condition of this Agreement, except for that you will make acceptable arrangements to pay any damage caused by Escrow Agent's own gross negligence withholding or willful default. Escrow Agent shall not have any liability or obligation for loss other taxes that may be due relating to your Restricted Stock and the issuance of all or any portion shares of Stock with respect to the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability Restricted Stock under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that the Corporation or any Affiliate determines that any federal, state, local, or foreign tax or withholding payment is required relating to the Restricted Stock or the issuance of shares of Stock with respect to the Restricted Stock under this Agreement, the Corporation or any Affiliate will have the right to (i) require you to tender a dispute shall arise cash payment, (ii) deduct from payments of any kind otherwise due to you, (iii) permit or require you to enter into a “same day sale” commitment with a broker-dealer that is a member of the Financial Industry Regulation Authority (a “FINRA Dealer”) whereby you irrevocably elect to sell a portion of the shares of Stock to be delivered in connection with this Agreementthe Restricted Stock to satisfy withholding obligations and whereby the FINRA Dealer irrevocably commits to forward the proceeds necessary to satisfy the withholding obligations directly to the Corporation or an Affiliate, or as (iv) require you to deliver to the rights Corporation shares of Stock already owned by you to meet such obligations; provided that the parties in and to, or shares of Stock delivered will have an aggregate Fair Market Value not exceeding the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part minimum amount of the Deposit until such dispute is settled or finally determined tax required to be withheld by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;applicable laws.
Appears in 1 contract
Escrow. a. Escrow Agent shall hold and disburse the Deposit in accordance with the following provisions:
i. If (a) On the Closing occursDate, then the Buyer shall deliver to the Escrow Agent a wire transfer in the amount of the Original Escrow Deposit, which amount shall deliver be deemed withheld from the Deposit to Seller.
ii. If for any reason Transaction Consideration and the Closing does not occur Aggregate Option Consideration and either party makes a written demand upon shall be deposited with the Escrow Agent for payment the purpose of securing the indemnification obligations of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those Sellers set forth in this Agreement and satisfying the adjustments to the Base Purchase Price set forth in Sections 1.10 and 1.11 hereof. The Escrow Fund shall be deemed to have been withheld from each Seller pro rata in the same proportion as the total amount of Transaction Consideration and Purchaser agree Option Consideration payable to such Seller under this Agreement bears to the total amount of Transaction Consideration and acknowledge that Option Consideration payable to all Sellers pursuant to this Agreement. The Escrow Fund shall be held by the Escrow Agent under the Escrow Agreement pursuant to the terms thereof. The Escrow Fund shall act hereunder be held as a depository only.
iv. Escrow Agent trust fund and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party, and shall be protected held and disbursed solely for the purposes and in relying upon accordance with the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties terms of the Escrow Agreement.
(b) On the Closing Date, the Buyer shall deliver to the Escrow Agent hereunder are purely ministerial in nature and the Letter of Credit. The Letter of Credit shall be expressly limited to increased or decreased, as the safekeeping and disposition case may be, in accordance with the provisions of the Deposit Escrow Agreement. The Transaction Consideration and the Aggregate Option Consideration otherwise payable at the Closing, and any adjustment thereto payable pursuant to Section 1.11, shall be reduced by the amount of the Letter of Credit, as such Letter of Credit may be amended in accordance with the provisions of this Section 1.13(b) and the Escrow Agreement, and shall be deemed to have been withheld from each Seller pro rata in the same proportion as the total amount of Transaction Consideration and Option Consideration payable to such Seller under this Agreement bears to the total amount of Transaction Consideration and Option Consideration payable to all Sellers pursuant to this Agreement. The Letter of Credit shall be held by the Escrow Agent under the Escrow Agreement pursuant to the terms thereof. The Letter of Credit shall not be liable for subject to any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreementlien, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all attachment, trustee process or any portion other judicial process of any creditor of any party, and shall be held and drawn upon solely for the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit purposes and in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights terms of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;.
Appears in 1 contract
Samples: Purchase Agreement (Kadant Inc)
Escrow. a. The party acting as Escrow Agent shall is authorized and agrees to hold and disburse the Deposit in escrow in accordance with the following provisions:
i. If terms and conditions of this Contract. Any interest earned on the Closing occurs, then Deposit is paid to the Florida Bar. Checks issued for the Deposit will be deposited promptly for clearance. The Escrow Agent shall deliver not be held responsible for nonpayment of checks received. In the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, event Escrow Agent is hereby authorized in doubt as to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period or if for any other reason Escrow Agent its duties and liabilities under the provisions of the Agreement, it may in good faith shall elect not to make such payment, Escrow Agent shall its sole discretion continue to hold such amount the monies which are the subject of the escrow until otherwise directed by written instructions from Buyer and Seller mutually agree to the disbursement thereof, or until a judgment of a court of competent jurisdiction shall determine the rights of the parties thereto, or it may deposit all the monies then held in escrow pursuant to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court court having jurisdiction of Orange Countythe dispute, Florida. Escrow Agent shall give written notice and upon notifying all parties concerned of such deposit action, all liability on its part shall fully cease and terminate except to Seller and Purchaserthe extent of accounting for any monies theretofore delivered out of escrow. Upon such deposit, Escrow Agent shall be relieved and discharged In the event of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement any suit between Buyer and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon wherein the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is made a party by virtue of acting solely as a stakeholder at their request and for their convenience, that escrow agent hereunder or in the duties event of any suit wherein the Escrow Agent hereunder are purely ministerial in nature and interpleads the subject matter of the escrow, it shall be expressly limited entitled to the safekeeping recover a reasonable attorneys, fee and disposition costs incurred, said fees and costs to be charged and assessed as court costs in favor of the Deposit in accordance with prevailing party. All parties agree that the provisions of this Agreement. Escrow Agent shall not be liable to any party or person whosoever for any action taken misdelivery to Buyer or omitted by Escrow Agent in good faith and believed by Escrow Agent Seller of monies subject to the escrow, unless such misdelivery shall be authorized due to willful breach of the Agreement or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful defaulton its part.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Real Estate Sale Contract (Royal Palm Beach Colony LTD Partnership)
Escrow. a. Any escrow agent, whether the Closing Agent or the Escrow Agent shall (separately referred to in this paragraph as the “escrow agent”), receiving funds or documents is authorized and agrees by acceptance thereof to promptly deposit and to hold same in escrow and to disburse the Deposit same subject to clearance thereof in accordance with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
iiterms and conditions of this Agreement. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment Failure of the Deposit, Escrow Agent clearance of funds shall give written notice not excuse performance by the depositor. In the event of doubt as to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no its duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with liabilities under the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon agent may, in its sole discretion, continue to hold the disbursement monies which are the subject of the Deposit in accordance with this Agreement, Escrow Agent escrow until a judgment of a court of competent jurisdiction shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to determine the rights of the parties in and tothereto, or it may deposit all of the disposition ofmonies then held pursuant to this Agreement with the Clerk of the Circuit Court of Polk County, the DepositFlorida, Escrow Agent which Circuit Court shall have jurisdiction of the right to: (i) hold dispute, and retain upon notifying all or any parties concerned of such action, all liability on the part of the Deposit until escrow agent shall fully terminate, except to the extent of accounting for any monies theretofore delivered out of escrow. In the event of any suit wherein the escrow agent is made a party by virtue of acting as such dispute is settled or finally determined by litigation, arbitrationescrow agent hereunder, or otherwise; (ii) deposit in the Deposit event of any suit wherein escrow agent interpleads the subject matter of this escrow, the escrow against shall be entitled to recover reasonable attorneys’ fees and costs incurred through all levels of proceedings, said fees and costs to be charged and assessed as court costs in an appropriate court favor of lawthe prevailing party. Except for the willful misconduct or gross negligence of the escrow agent, following which Escrow Agent all parties agree that the escrow agent shall thereby not be liable to any party or person whomsoever for misdelivery to Purchaser or Seller of monies subject to this escrow, unless such misdelivery shall be due to willful breach of this Agreement or gross negligence on the part of escrow agent. Seller acknowledges that it has been advised that escrow agent has acted and thereafter be relieved is also acting herein as counsel to Purchaser and released from any liability or obligation under this Agreement;Seller has no objection thereto. The foregoing paragraph shall survive the Closing.
Appears in 1 contract
Samples: Sale Agreement
Escrow. a. The Deposit and any other sums which the parties agree shall be held in escrow (herein collectively called the "Escrow Agent Deposits"), together with all interest earned thereon, shall hold be held by the Escrow Agent, in trust, and disburse the Deposit disposed of only in accordance with the following provisions:
i. (a) The Escrow Agent shall invest all cash Escrow Deposits in government insured interest-bearing instruments satisfactory to both Buyer and Seller, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, and shall promptly provide Buyer and Seller with confirmation of the investments made.
(b) If the Closing occurs, then and if the Escrow Deposit is in cash, the Escrow Agent shall deliver the Deposit to SellerEscrow Deposits to, or upon the instructions of, Seller on the Closing Date.
ii(c) If for any reason the Closing does not occur, the Escrow Agent shall deliver the Escrow Deposits and all interest earned thereon to Seller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions of this Subsection 12.1(c). If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent for payment of the DepositEscrow Deposits and the interest earned thereon, the Escrow Agent shall give written notice to the other party of such demanddemand at the addresses set forth in Section 14.9. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN 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 TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentperiod, the Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement signed by Seller and Buyer or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court a court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereundercompetent jurisdiction.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. (d) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties Escrow Agent shall not be deemed to be the agent of either of the Escrow Agent hereunder are purely ministerial in nature parties, and shall be expressly limited to that the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable to either of the parties for any action or omission on its part taken or omitted made in good faith, and not in disregard of this Agreement, but shall be liable for its negligent acts and for any loss, cost or expense incurred by Seller or Buyer resulting from the Escrow Agent's mistake of law respecting the Escrow Agent's scope or nature of its duties. Seller and Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including reasonable attorneys' fees, incurred in connection with the performance of the Escrow Agent's duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in good faith bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.
(e) Buyer shall pay any income taxes on any interest earned on the Deposit if the Deposit is refunded to Buyer as applied against the Purchase Price, and believed by Seller shall pay all income taxes on any interest earned on the Deposit if the Deposit is paid to Seller as liquidated damages. Buyer represents and warrants to the Escrow Agent that its taxpayer identification number is 00-0000000; and Seller shall supply to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. the Escrow Agent its taxpayer identification number promptly following the date hereof.
(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 not have any liability or obligation for loss hold the Escrow Deposits and the interest earned thereon, in escrow, and shall disburse the Escrow Deposits, and the interest earned thereon, pursuant to the provisions of all or any portion of this Article 12.
(g) The escrow fee, if any, charged by the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful defaultpaid by Buyer.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Escrow. a. Escrow Agent shall hold and disburse The parties have opened an escrow (the Deposit in accordance “Escrow”) with the following provisions:
i. If Escrow Holder. This Agreement, together with such further instructions, if any, as the Closing occurs, then parties shall provide to the Escrow Agent Holder, shall deliver constitute the Deposit escrow instructions to Seller.
iithe Escrow Holder. If for Upon Escrow Holder’s receipt of any reason notice from Seller or Purchaser directing the Closing does not occur and either party makes a written demand upon Escrow Agent for payment disposition of the Deposit, Escrow Agent Holder shall give only deliver the Deposit pursuant to such notice after Escrow Holder first sends written notice to Seller and Purchaser stating that Escrow Holder intends to deliver the other party of Deposit as so directed, and neither Seller nor Purchaser provide a written notice to Escrow Holder objecting to such demandproposed delivery within four (4) business days thereafter. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive neither Seller nor Purchaser provides such written objection to Escrow Holder within such TEN four (104) business day period, Escrow Holder shall deliver the Deposit as so directed. If either Seller or Purchaser provide such written objection to Escrow Holder within such four (4) business day period 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 instructions from the parties to this Agreement or a final judgment in court. Howevergive the Escrow Holder contradictory instructions, the Escrow Agent Holder shall have the right at any time its election to file an action in interpleader requiring the parties to answer and litigate their several claims and rights among themselves, and the Escrow Holder is authorized to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller court all documents and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth funds held in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
viEscrow. In the event that a dispute shall arise in connection with this Agreementsuch action is filed, or as to the rights each of the parties agree to pay one-half (1/2) of the Escrow Holder’s cancellation charges and costs, expenses and reasonable attorney’s fees that the Escrow Holder is required to expend or incur in and to, or the disposition ofinterpleader action, the Depositamount thereof to be fixed and judgment therefor to be rendered by the court. Upon the filing of such an action, the Escrow Agent Holder shall have thereupon be fully released and discharged from all obligations to further perform any duties or obligations otherwise imposed by the right to: (i) hold and retain all or any part terms of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;Escrow.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Hotels & Resorts, Inc)
Escrow. a. The parties hereby appoint Pxxxxx Xxxxx, Esq. of The Mxxxx Law Firm, PLLC with offices located at 2000 XX 0xx Xxx, Xxxx Xxxxxxxxxx, XX 00000 as the escrow agent (the “Escrow Agent shall hold and disburse the Deposit Agent”) to perform in accordance with the following provisions:
i. If the Closing occurs, then terms and provisions of this Agreement. The Securities listed on Exhibit A as being held in escrow shall be delivered to the Escrow Agent shall deliver by the Deposit to Seller.
ii. If for any reason Company and held by him in accordance with this Agreement, including Exhibit A. The Company and Purchaser agree that the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from assume any responsibility for the other failure of either party to perform in accordance with this Agreement. The acceptance by the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent of its responsibilities hereunder is hereby authorized subject to make such payment. If the following terms and conditions, which the parties hereto agree shall govern and control with respect to the Escrow Agent does receive such written objection within such TEN Agent’s rights, duties, liabilities and immunities:
(101) day period or if for any other reason Escrow Agent in good faith shall elect not to make such payment, The Escrow Agent shall continue to hold such amount until otherwise directed release the Securities in accordance with Exhibit A or as modified in writing and signed by written instructions from the parties to this Agreement or a final judgment in court. However, hereto.
(2) The Escrow Agent shall have the right at only those duties as are specifically provided herein, which shall be deemed purely ministerial in nature, and shall under no circumstance be deemed a fiduciary for any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Floridaother parties to this Agreement. The Escrow Agent shall give written notice not be required to take any action hereunder involving any expense unless the payment of such deposit expense is made or provided for in a manner reasonably satisfactory to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunderit.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. (3) The Escrow Agent shall be protected in relying acting upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any written notice, demandconsent, certificate, signature, instrument receipt or other paper or document which is given furnished to Escrow Agent without verifying it, not only as to its due execution and validity and effectiveness of its provisions, but also as to the truth or and accuracy of any such noticeinformation therein contained, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of which the Escrow Agent hereunder are purely ministerial in nature good faith believes to be genuine and what it purports to be. Should it be necessary for the Escrow Agent to act upon any instructions, directions, documents or instruments issued or signed by or on behalf of any corporation, fiduciary or individual acting on behalf of another party hereto, which the Escrow Agent in good faith believes to be genuine, it shall not be expressly limited necessary for the Escrow Agent to inquire into the safekeeping and disposition authority of the Deposit in accordance with the provisions of this Agreement. such corporation, fiduciary or individual.
(4) The Escrow Agent shall not be liable for any action error of judgment or for any act done or step taken or omitted by Escrow Agent it in good faith and believed by Escrow Agent to be authorized faith, or within its rights for anything which it may do or powers conferred upon it by this Agreementrefrain from doing in connection herewith, except for any damage caused by Escrow Agent's its own gross negligence or willful defaultmisconduct.
(5) The Escrow Agent may consult with, and obtain advice from, legal counsel in the event of any question as to any of the provisions hereof or the duties hereunder, and it shall incur no liability and shall be fully protected in acting in good faith in accordance with the opinion and instructions of such counsel. The Company shall reimburse the Escrow Agent for reasonable and documented costs of such counsel’s services.
(6) The Escrow Agent shall not have neither be responsible for, nor chargeable with knowledge of, the terms and conditions of any liability other agreement, instrument or obligation for loss document between the other parties hereto. This Agreement sets forth all matters pertinent to the escrow contemplated hereunder, and no additional obligations of all the Escrow Agent shall be inferred from the terms of this Agreement or any portion other agreement, instrument or document.
(7) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from the Company or Purchaser Seller which, in its opinion, conflict with any of the Deposit provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing jointly by reason the parties or by a final and non-appealable order of a court of competent jurisdiction.
(8) Any corporation or association into which the Escrow Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its escrow business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall be and become the successor escrow agent hereunder and vested with all of the insolvency title to the whole property or failure trust estate and all of the institution trusts, powers, immunities, privileges, protections and all other matters as was its predecessor, without the execution or filing of depository with whom any instrument or any further act, deed or conveyance on the escrow account is maintainedpart of any of the parties hereto, anything herein to the contrary notwithstanding. Upon the disbursement delivery of the Deposit Escrow Funds to a successor escrow agent in accordance with this Agreementsection, the Escrow Agent shall thereafter be relieved and released discharged from any liability under this Agreementfurther obligations hereunder. All power, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreementauthority, or as to the rights duties and obligations of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or apply to any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;successor escrow agent.
Appears in 1 contract
Samples: Stock Purchase Agreement (Mojo Data Solutions, Inc.)
Escrow. a. (a) Forthwith following the Closing Date, the Purchaser shall deliver to the Escrow Agent certificates representing the Escrow Consideration Shares, as described in Section 3.3(c), for the purpose of securing the indemnification obligations of the Vendor set forth in this Agreement. The Escrow Consideration Shares shall hold be held by the Escrow Agent pursuant to the Escrow Agreement, in substantially the form set forth in Exhibit B attached hereto. The Escrow Consideration Shares shall be held as a trust fund and disburse shall not be 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 the Deposit purposes and in accordance with the following provisions:terms of the Escrow Agreement.
i. If (b) The Vendor, at its discretion, may transfer any or all of the Closing occursEscrow Consideration Shares at any time to existing stakeholders of the Vendor (“Permitted Transferees”) in accordance with Applicable Law and subject to the terms of the Lock-Up and Leak-Out Agreement. The Purchaser and the Vendor acknowledge and agree that, then in the event that the Vendor transfers Escrow Consideration Shares and such shares continue to be held in escrow by the Escrow Agent, any Permitted Transferee must agree to enter into the Escrow Agreement and provide the Escrow Agent with all documents required in order to facilitate the Escrow Agent’s duties under the Escrow Agreement, including without limitation duly authorized stock powers of attorney properly endorsed for transfer in forms acceptable to the Escrow Agent (acting reasonably) and the Purchaser’s transfer agent, before any transfer to Permitted Transferees may be effected. The Purchaser and the Vendor acknowledge and agree that (i) the Escrow Agreement shall deliver be amended upon the Deposit occurrence of any transfer to SellerPermitted Transferees in order to provide for the escrow of Escrow Consideration Shares registered in the names of Permitted Transferees, however the terms of the escrow shall remain in substantially the form as set out in the form of Escrow Agreement attached hereto as Exhibit B, and that (ii) the Permitted Transferees shall appoint one representative who shall have full power and authority to represent all Permitted Transferees with respect to all matters arising under the Escrow Agreement.
ii. If for any reason (c) In the Closing does not occur and either party makes event the Vendor provides a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Purchaser and the Escrow Agent, and the Permitted Transferee(s) have entered into the amended Escrow Agreement and provided the Escrow Agent does not receive a written objection from with all ancillary documents required, the other party Purchaser shall in good faith use its best efforts to transfer the proposed payment Escrow Consideration Shares within TEN ten (10) Business days after (the giving of such notice“Transfer Period”). For clarification, any Escrow Agent is hereby authorized Consideration Shares transferred to make such payment. If any Permitted Transferee will be subject to the Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller the Lock-Up and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository onlyLeak-Out Agreement.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Asset Purchase Agreement
Escrow. a. Escrow Agent Title Company shall hold and disburse the Deposit and Purchaser's and each Seller's Documents in escrow, dispose of the Deposit, pro rate expenses and deliver Purchaser's and each Seller's Documents only in accordance with the following provisions:
i. If (a) Prior to the full execution of this Agreement, Purchaser and Sellers opened an escrow (the "Escrow") with the Title Company, by delivering to Title Company the Initial Deposit. Within two (2) days after the full execution of this Agreement, the parties shall deliver to Title Company a fully executed copy of this Agreement. The purchase and sale of the Properties and JV Interests shall be completed through the Escrow, at the location specified in Section 4(d). This Agreement shall constitute joint escrow instructions to Title Company in connection with the Escrow. Purchaser and Sellers hereby agree to execute such additional instructions not inconsistent with this Agreement as may be reasonably required by Title Company.
(b) At the Closing, the Title Company shall do the following with respect to each Property:
(i) Cause each Deed to be recorded;
(ii) Disburse all funds deposited with Title Company by Purchaser in payment of the Purchase Price for such Property or JV Interest as follows:
A. Deduct the amount of items chargeable to the account of the applicable Seller pursuant to this Agreement, as set forth on a settlement statement executed by Purchaser and the applicable Seller; and
B. The remaining balance of the funds deposited by Purchaser in the Escrow in payment of the Purchase Price for such Property shall be disbursed to the applicable Seller pursuant to its demand;
(iii) Deliver to the applicable Seller original counterparts of the Partnership Assignment, Lease Assumption, Contract and License Assignment, copies of all assumptions of mortgage loans and any other documents required to be executed by any Mortgagee to the extent permitted under this Agreement in relation to such assumption and any other documents executed by Purchaser.
(iv) Deliver or cause to be delivered to Purchaser a marked up copy of the Commitment for such Property, photostat copy of the Deed for such Property, an original counterpart of the Partnership Assignment, Lease Assumption, Xxxx of Sale, Contract and License Assignment, an original FIRPTA Affidavit executed by the applicable Seller for such Property, and any other documents executed by Sellers.
(c) All costs and expenses in connection with the transaction contemplated by this Agreement (including documentary taxes, transfer taxes, stamp taxes, recording taxes and fees, title search fees, and title insurance premiums, but specifically excluding legal, consulting and other professional fees or costs, which each party shall bear individually, or the costs of Inspections or any loan assumption fees Purchaser has agreed to pay pursuant to this Agreement, which Purchaser shall bear) shall be apportioned between Purchaser and each Seller in accordance with Schedule 18(c). This Section 18(c) shall survive the Closing occurs, then (and shall not be merged in the Escrow Agent Deeds) or earlier termination of this Agreement.
(d) Title Company shall deliver the Deposit to Seller.Sellers or Purchaser, as the case may be, as follows:
(i) to Sellers, upon completion of the Closing, to be applied against the Purchase Prices of the Properties and JV Interests as PREIT shall direct; or
(ii) to PREIT, after receipt of PREIT's demand in which PREIT certifies either that (A) Purchaser has materially defaulted under this Agreement, or (B) this Agreement has been otherwise terminated or cancelled, and Sellers are thereby entitled to receive the Deposit; but, except as set forth below with respect to the Additional Deposit, Title Company shall not honor PREIT's demand until more than ten (10) days after Title Company has given a copy of such demand to Purchaser in accordance with Section 18(e)(i), nor thereafter if Title Company receives a Notice of Objection from Purchaser within such ten (10) day period; provided, however, Purchaser shall not have the right to give a Notice of Objection if the default is Purchaser's failure to make the Additional Deposit as provided in Section 2(b), and the Title Company shall honor PREIT's demand immediately in such event; or
(iii) to Purchaser, after receipt of Purchaser's demand in which Purchaser certifies either that (A) Sellers have materially defaulted under this Agreement, or (B) this Agreement has been otherwise terminated or cancelled, and Purchaser is thereby entitled to receive the Deposit; but Title Company shall not honor Purchaser's demand until more than ten (10) days after Title Company has given a copy of Purchaser's demand to PREIT in accordance with Section 18(e)(i), nor thereafter if Title Company receives a Notice of Objection from PREIT within such ten (10) day period. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment Upon such delivery of the Deposit, Escrow Agent Title Company shall give be relieved of all liability hereunder and with respect to the Deposit. Title Company shall deliver the Deposit by a bank wire transfer of immediately available funds to an account designated by the party entitled to the Deposit.
(e) (i) Upon receipt of a written notice demand from PREIT or Purchaser under Section 18(d)(ii) or (iii), Title Company shall send a copy of such demand to the other party of such demandparty. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN Within ten (10) days after the date of receiving same, but not thereafter, the other party may object to delivery of the Deposit to the party making such demand by giving a notice of objection (a "Notice of Objection") to Title Company. After receiving a Notice of Objection, Title Company shall send a copy of such noticeNotice of Objection to the party who made the demand; and thereafter, Escrow Agent is hereby authorized in its sole and absolute discretion, Title Company may elect either (A) to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such payment, Escrow Agent shall continue to hold the Deposit until Title Company receives a written agreement of Purchaser and PREIT directing the disbursement of the Deposit, in which event Title Company shall disburse the Deposit in accordance with such amount until otherwise directed by written instructions from agreement; and/or (B) to take any and all actions as Title Company deems necessary or desirable, in its reasonable discretion, to discharge and terminate its duties under this Agreement, including without limitation depositing the parties to this Agreement Deposit into any court of competent jurisdiction and bringing any action of interpleader or a final judgment any other proceeding; and/or (C) in court. Howeverthe event of any litigation between Sellers and Purchaser, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, Deposit with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of court in which such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunderlitigation is pending.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pennsylvania Real Estate Investment Trust)
Escrow. a. The Escrow Agent Amount delivered by Buyer at Closing pursuant to the Escrow Agreement shall hold be held in segregated escrow funds, $1,500,000 of which shall be used to satisfy any Working Capital Shortfall (the “Working Capital Escrow Amount” and, together with the earnings thereon, the “Working Capital Escrow Fund”), and disburse $3,500,000 of which shall serve as security for any indemnification obligations of Parent hereunder (the Deposit “Indemnification Escrow Amount” and, together with the earnings thereon, the “Indemnification Escrow Fund”). Releases from the Working Capital Escrow Fund and the Indemnification Escrow Fund will be permitted only in accordance with the following provisions:
i. If the Closing occurs, then terms and conditions of this Agreement and the Escrow Agent shall deliver the Deposit to Seller.
iiAgreement. If for any reason there is no Working Capital Shortfall, the Closing does not occur and either party makes a written demand upon Working Capital Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent Fund shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for distributed by the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in the terms and conditions of this Agreement and Seller and Purchaser agree and acknowledge that the Escrow Agreement to Parent. If there is a Working Capital Shortfall, the Working Capital Escrow Fund, less the Working Capital Shortfall, shall be distributed by the Escrow Agent on such date in accordance with the terms and conditions of this Agreement and the Escrow Agreement to Parent. If there are no outstanding claims for indemnification by Buyer as of the date that is fifteen (15) months following the Closing Date (the “Indemnification Escrow Termination Date”), the Indemnification Escrow Fund shall act hereunder as a depository only.
iv. be distributed by the Escrow Agent in accordance with the terms and conditions of the Escrow Agreement to Parent. If there are outstanding claims for indemnification by Buyer on the Indemnification Escrow Termination Date, the Indemnification Escrow Fund, less the amount corresponding to each such outstanding claim, shall be protected in relying upon distributed by the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying in accordance with the truth or accuracy terms and conditions of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenienceAgreement to Parent; provided, that the duties remaining balance of amounts withheld with respect to each outstanding claim shall be distributed to Parent upon final satisfaction of such outstanding claim in accordance with Article IX and the provisions of the Escrow Agreement. Final distribution of the Indemnification Escrow Fund shall be made net of any accrued fees and expenses of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful defaultthen outstanding.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Escrow. a. Any escrow agent receiving funds is authorized and agrees by its execution hereof to promptly deposit and to hold same in escrow and to disburse same subject to clearance thereof in accordance with terms and conditions of this Agreement. The Escrow Agent shall hold and disburse deposit the Deposit in accordance with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment bank insured by an agency of the DepositUnited States and located in Miami-Dade County, Florida. The funds in escrow may be DocuSign Envelope ID: F2821A53-EEC5-4046-8225-DAAA61FBF286 deposited in separate accounts or common escrow or trust accounts handled by Escrow Agent shall give written notice to the other party of such demandAgent. If Escrow Agent does not receive a written objection from the 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 Escrow Agent does receive such written objection within such TEN (10) day period or if for released from 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 instructions liability which may result from the parties to this Agreement or a final judgment manner in court. Howeverwhich the deposits are invested, Escrow Agent shall have provided that the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed complied with the foregoing provisions of this Agreement for Paragraph 23. Failure of clearance of funds shall not excuse performance by the sole purpose Purchaser. In the event of agreeing doubt as to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no its duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with liabilities under the provisions of this Agreement, the Escrow Agent may, in its sole discretion, continue to hold the monies which are the subject of this escrow until the parties mutually agree to the disbursement thereof, or until a judgment of a court of competent jurisdiction shall determine the rights of the parties thereto, or it may deposit or interplead all the monies then held pursuant to this Agreement with the Clerk of the Circuit Court of Miami-Dade County and upon notifying all parties concerned with such action, all liability on the part of the Escrow Agent shall fully terminate, except to the extent of accounting for any monies theretofore delivered out of escrow. In the event of any suit between Purchaser and Seller wherein the Escrow Agent is made a party by virtue of acting as such Escrow Agent hereunder, or in the event of any suit wherein Escrow Agent interpleads the subject matter of this escrow, the Escrow Agent shall be entitled to recover a reasonable attorney's fee and costs incurred, said fees and costs to be charged and assessed as court costs in favor of the prevailing party or the interpleaded funds as applicable. All parties agree that the Escrow Agent shall not be liable to any party or person whomsoever for any action taken misdelivery to Purchaser or omitted by Seller of monies subject to this escrow or otherwise, unless due to the willful misconduct or gross negligence on the part of the Escrow Agent. The parties hereto indemnify the Escrow Agent in good faith and believed by agree to hold Escrow Agent to harmless from any claims, liabilities, losses, suits, judgments or costs, or other expenses, fees or charges of any character or nature, including attorneys’ fees and costs, which it may incur or with which it may be authorized or within threatened by reason of its rights or powers conferred upon it by actions as Escrow Agent under this Agreement, except for any damage caused by such matters which are the result of Escrow Agent's own ’s gross negligence or willful defaultmalfeasance. The parties recognize that the Escrow Agent shall not have is the law firm representing Purchaser, and agree that such law firm may continue to represent Purchaser in any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as pursuant to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, Agreement or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Escrow. a. Escrow Agent shall Any escrow agent receiving funds or documents is authorized and agrees by acceptance thereof to promptly deposit and to hold same in escrow and to disburse the Deposit same subject to clearance thereof in accordance with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
iiterms and conditions of this Agreement. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment Failure of the Deposit, Escrow Agent clearance of funds shall give written notice not excuse performance by the depositor. In the event of doubt as to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no its duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with liabilities under the provisions of this Agreement, the Escrow Agent may, in its sole discretion, continue to hold the monies which are the subject of this escrow until a judgment of a court of competent jurisdiction shall determine the rights of the parties thereto, or it may deposit all of the monies then held pursuant to this Agreement with the Clerk of the Circuit Court of Pinellas County, Florida, which Circuit Court shall have jurisdiction of the dispute, and upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully terminate, except to the extent of accounting for any monies theretofore delivered out of escrow. In the event of any suit wherein the Escrow Agent is made a party by virtue of acting as such Escrow Agent hereunder, or in the event of any suit wherein Escrow Agent interpleads the subject matter of this escrow, the Escrow Against shall be entitled to recover reasonable attorneys’ fees and costs incurred through all levels of proceedings, said fees and costs to be charged and assessed as court costs in favor of the prevailing party. Except for the willful misconduct or gross negligence of the Escrow Agent, all parties agree that the Escrow Agent shall not be liable to any party or person whomsoever for any action taken misdelivery to Purchaser or omitted by Seller of monies subject to this escrow, unless such misdelivery shall be due to willful breach of this Agreement or gross negligence on the part of Escrow Agent. Seller acknowledges that it has been advised that Escrow Agent in good faith has acted and believed by Escrow Agent is also acting herein as counsel to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful defaultPurchaser and Seller has no objection thereto. Escrow Agent The foregoing paragraph shall not have any liability or obligation for loss of all or any portion of survive the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful defaultClosing.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Sale Agreement
Escrow. a. Escrow Agent Title Company shall hold and disburse the Deposit and Purchaser’s and Seller’s Documents in escrow, dispose of the Deposit, pro rate expenses and deliver Purchaser’s and Seller’s Documents only in accordance with the following provisions:
i. If (a) Prior to the full execution of this Agreement, Purchaser and Seller opened an escrow (the “Escrow”) with the Title Company. Within two (2) days after the full execution and delivery of this Agreement, the parties shall deliver to Title Company a fully executed copy of this Agreement. The purchase and sale of the Parking Garage shall be completed through the Escrow. This Agreement shall constitute joint escrow instructions to Title Company in connection with the Escrow. Purchaser and Seller hereby agree to execute additional instructions not inconsistent with this Agreement as may be reasonably required by Title Company.
(b) At the Closing, the Title Company shall do the following:
(i) Cause the Deed to be recorded;
(ii) Disburse all funds deposited with Title Company by Purchaser in payment of the Purchase Price for the Parking Garage as follows:
(A) Deduct the amount of items chargeable to the account of Seller pursuant to this Agreement; and
(B) The remaining balance of the funds deposited by Purchaser in the Escrow in payment of the Purchase Price shall be disbursed to Seller pursuant to its demand;
(iii) Deliver or cause to be delivered to Seller original counterparts of the Lease Assumption, License Assignment the Subgrant and the Construction License, and any other documents required to be executed and/or delivered by Purchaser hereunder.
(iv) Deliver or cause to be delivered to Purchaser a photostat copy of the Deed, original counterparts of the Lease Assumption, License Assignment, Subgrant and Construction License, an original Xxxx of Sale, a marked up copy of any title commitment ordered by Purchaser, and any other documents required to be executed and/or delivered by Seller hereunder.
(c) The costs incidental to the Closing occursshall be paid as follows:
(i) All real estate transfer taxes will be paid by Purchaser at Closing. Purchaser is advised that Seller is an “Exempt Party” under 72 P.S. 8102-C.2 (state transfer tax law) and Section 19-1404 of the Philadelphia Code (City transfer tax law), then and that the Escrow Agent Purchaser is therefore liable for payment of l00% of state and City real estate transfer taxes imposed on the sale.
(ii) Seller shall record the Declaration at its sole cost and expense, if any.
(iii) Purchaser shall pay the cost of recording the Deed.
(iv) Purchaser shall pay all premiums and charges of the Title Company for any title policies ordered by Purchaser, all other costs of Purchaser’s Investigations.
(v) Purchaser and Seller shall each pay their own legal fees and other incidental expenses incurred in connection with the transaction contemplated by this Agreement.
(vi) Any other costs or expenses in connection with the transaction contemplated by this Agreement shall be apportioned in the manner customary in similar real estate transactions in Philadelphia County, Pennsylvania. This Section 17(c) shall survive the Closing (and shall not be merged in the Deed) or earlier termination of this Agreement.
(d) Title Company shall deliver the Deposit to Seller or Purchaser, as the case may be, as follows:
(i) to Seller., upon completion of the Closing; or
(ii) to Seller, after receipt of Seller’s demand in which Seller certifies either that (A) Purchaser has defaulted under this Agreement, or (B) this Agreement has been otherwise terminated or cancelled, and Seller is thereby entitled to receive the Deposit; but Title Company shall not honor Seller’s demand until more than ten (10) days after Title Company has given a copy of Seller’s demand to Purchaser in accordance with Section 17(e)(i), nor thereafter if Title Company receives a Notice of Objection from Purchaser within that ten (10) day period; or
(iii) to Purchaser, after receipt of Purchaser’s demand in which Purchaser certifies either that (A) Seller has defaulted under this Agreement, or (B) this Agreement has been otherwise terminated or cancelled, and Purchaser is thereby entitled to receive the Deposit; but Title Company shall not honor Purchaser’s demand until more than ten (10) days after Title Company has given a copy of Purchaser’s demand to Seller in accordance with Section 17(e)(i), nor thereafter if Title Company receives a Notice of Objection from Seller within that ten (10) day period. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment Upon delivery of the Deposit, Escrow Agent Title Company shall give be relieved of all liability hereunder and with respect to the Deposit. Title Company shall deliver the Deposit, at the election of the party entitled to receive the same, by (A) a good, unendorsed certified check of Title Company payable to the order of that party, (B) an unendorsed official bank or cashier’s check payable to the order of that party, or (C) a bank wire transfer of immediately available funds to an account designated by that party.
(e) (i) Upon receipt of a written notice demand from Seller or Purchaser under Section 17(d)(ii) or (iii), Title Company shall send a copy of the demand to the other party of such demandparty. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN Within ten (10) days after the date of receiving same, but not thereafter, the other party may object to delivery of the Deposit to the party making the demand by giving a notice of such noticeobjection (a “Notice of Objection”) to Title Company. After receiving a Notice of Objection, Escrow Agent is hereby authorized Title Company shall send a copy of the Notice of Objection to make such payment. If Escrow Agent does receive such written objection within such TEN the party who made the demand; and thereafter, in its sole and absolute discretion, Title Company may elect either (10A) day period or if for any other reason Escrow Agent in good faith shall elect not to make such payment, Escrow Agent shall continue to hold the Deposit until Title Company receives a written agreement of Purchaser and Seller directing the disbursement of the Deposit, in which event Title Company shall disburse the Deposit in accordance with such amount until otherwise directed by written instructions from agreement; and/or (B) to take any and all actions as Title Company deems necessary or desirable, in its sole and absolute discretion, to discharge and terminate its duties under this Agreement, including without limitation depositing the parties to this Agreement Deposit into any court of competent jurisdiction and bringing any action of interpleader or a final judgment any other proceeding; and/or (C) in court. Howeverthe event of any litigation between Seller and Purchaser, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, Deposit with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereundercourt in which that litigation is pending.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Purchase and Sale Agreement
Escrow. a. On or before the Closing, Parent and the Company shall engage the Escrow Agent. To secure the Company Stockholders’ and the Optionholders’ indemnification obligations under this Agreement, Parent will place into escrow with the Escrow Agent the Escrow Consideration. The Escrow Agent shall hold and disburse distribute the Deposit Escrow Consideration in accordance with the following provisions:
i. If terms of the Closing occurs, then Escrow Agreement. The Stockholders’ Representative is authorized to act on behalf of the Company Stockholders and the Optionholders with respect to the Escrow Consideration. All payments of Escrowed Property made by the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent Parent in accordance with this Article. Agreement or the Escrow Agent shall have no duties Agreement including, without limitation, in satisfaction of any Working Capital Adjustment payment owed to Parent under Section 3.9(e) or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent satisfaction of indemnification claims under Article 9 herein, shall be protected in relying upon allocated pro rata to each Company Stockholder and Optionholder based on the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties relative amount of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited Consideration allocated to the safekeeping and disposition of the Deposit in accordance with the provisions of such Company Stockholder or Optionholder under this Agreement. Escrow Agent shall not be liable for any action taken or omitted All payments of Escrowed Property made by Escrow Agent in good faith and believed by the Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit Stockholders’ Representative in accordance with this Agreement, Agreement and the Escrow Agent Agreement shall be relieved allocated pro rata to each Company Stockholder and released from any liability Optionholder, and (subject to the following sentence) paid by the Stockholders’ Representative to such Company Stockholder or Optionholder on a pro rata basis, in each case based on the relative amount of the Escrow Consideration allocated to such Company Stockholder or Optionholder under this Agreement. The Stockholders’ Representative is expressly authorized and directed to pay out of the proceeds of any Escrowed Property released to him any fees and expenses owed to any finder or broker as a result thereunder prior to the remainder being distributed to the Company Stockholders and Optionholders. Each Company Stockholder’s and Optionholder’s allocable portion and percentage of the Escrow Consideration (and allocable percentage of any subsequent payments of Escrowed Property to Parent or the Stockholders’ Representative, except as the case may be) is conclusively set forth on Exhibit D attached hereto. The Stockholders’ Representative shall be solely responsible for distributing to each Company Stockholder and Optionholder in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection accordance with this Agreement, or as Agreement and the Escrow Agreement the amount of any Escrowed Property paid by the Escrow Agent to the rights Stockholders’ Representative pursuant to the Escrow Agreement. Neither the Escrow Agent nor Parent shall have any responsibility or Liability for the allocation of any such Escrowed Property among the parties in Company Stockholders and to, the Optionholders or the disposition of, payment thereof to the Deposit, Escrow Agent Company Stockholders and the Optionholders. The Company Stockholders and the Optionholders shall have look solely to the right to: (i) hold Stockholders’ Representative with respect to the determination of their entitlement to any Escrowed Property and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;amount thereof.
Appears in 1 contract
Samples: Merger Agreement (Ediets Com Inc)
Escrow. a. Escrow Agent shall hold and disburse the Deposit in accordance with the following provisions:
i. If On the Closing occursDate, then Purchaser shall deliver to the Escrow Agent Agent, as a contribution to the Escrow Account, the Escrow Amount, which shall deliver be available to compensate Purchaser (on behalf of itself or any other Purchaser Indemnified Persons) for Damages pursuant to the Deposit indemnification obligations of the Company and Shareholders set forth in Article VIII of this Agreement, the Escrow Agreement and pursuant to Seller.
ii. If Section 2.4(e) for any reason the Closing does not occur and either party makes a written demand upon Purchase Price Deficit. The Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent Amount shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for held by the sole purpose of agreeing to act as Escrow Agent in accordance with the terms of this ArticleAgreement and the terms of the Escrow Agreement. As promptly as practicable following the date that is 18 months following the Closing Date (the “Escrow Release Date”), the Escrow Agent shall have no duties or responsibilities except those set forth disburse to the Shareholders any amount then remaining in this Agreement and Seller and Purchaser agree and acknowledge that the Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon Account less the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties portion of the Escrow Agent hereunder are purely ministerial Amount required to address (x) all unsatisfied or disputed claims for indemnification specified in nature and shall be expressly limited any claim notice delivered to the safekeeping and disposition of Escrow Agent prior to the Deposit Escrow Release Date in accordance with Article VIII, and (y) any pending dispute with respect to the provisions determination of this AgreementFinal Purchase Consideration which, if determined in favor of Purchaser in accordance with Section 2.4(e), would result in a Purchase Price Deficit. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any Any portion of the Deposit by reason Escrow Amount held following the Escrow Release Date with respect to pending but unresolved claims for indemnification or a Purchase Price Deficit that is not awarded to Purchaser upon the resolution of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent such claims shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as disbursed within ||||| ||||| Business Days following final resolution of such claims to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;Shareholders.
Appears in 1 contract
Escrow. a. The Deposit shall be delivered to Escrow Agent, and ------ Escrow Agent shall hold and disburse deliver the Deposit in accordance with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions terms of this Agreement. Escrow Agent shall not at all times be liable for any action taken authorized to deliver the Deposit in accordance with the terms of this Agreement or omitted with written instructions executed by both SJH Partnership and Buyer. In the event that Escrow Agent shall receive a written claim of default by either SJH Partnership or Buyer against the other, then Escrow Agent shall not release the Deposit from escrow unless and until Escrow Agent shall have received joint written instructions from SJH Partnership and Buyer as to the proper delivery of the Deposit or Escrow Agent has received direction from a court of competent jurisdiction (after expiration of any applicable appeal period) as to the proper party entitled to receipt of the Deposit. Escrow Agent shall be authorized to file an action in interpleader to determine the proper party entitled to the Deposit, and the defaulting party, as determined by such proceeding, shall indemnify and hold harmless Escrow Agent from all costs and expenses, including reasonable attorneys' fees associated with such proceeding. Escrow Agent may act in reliance upon any writing or instrument or signature which it in good faith and believed by Escrow Agent believes to be genuine and may assume that any person purporting to give any writing, notice, advice, or instruction in connection with the provisions hereof has been duly authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful defaultto do so. Escrow Agent shall not have be liable in any liability manner for the sufficiency or obligation for loss correctness as to form, manner of all execution or validity of any portion instrument deposited in this escrow nor as to the identity, authority or right of any persons executing the same; and its duties hereunder shall be limited to the safekeeping of the Deposit by reason Deposit, and for the disposition of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit same in accordance with this Agreement, . Escrow Agent shall be relieved hereby executes this Agreement for the sole and released from exclusive purpose of evidencing its agreement to the provisions of Sections 2.3 and 2.4 hereof. Buyer acknowledges that Escrow Agent is also the firm representing SJH Partnership in this transaction and Buyer consents to Escrow Agent's continued representation of SJH Partnership in any liability litigation arising under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Escrow. a. Escrow Agent shall hold Upon receipt by OZ Management L.L.C. (“OZ”) of written notice from the Company as to the completion of any Milestone Event (as defined below), together with reasonably sufficient documentary evidence indicating the completion of such Milestone Event and disburse the Deposit in accordance with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment amount of the Depositcorresponding Milestone Payment (as defined below), Escrow Agent OZ shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN have ten (10) days after to (i) deliver written instructions to the giving of such notice, Escrow Agent is hereby authorized (as defined in the Share Purchase Agreement) authorizing the transfer to make the Company of the Milestone Payment, or (ii) inform the Company that OZ disputes the completion of the Milestone Event and/or the amount of the corresponding Milestone Payment. In the event of a dispute as to the completion of any Milestone Event and/or the amount of any Milestone Payment, the Company and OZ shall cooperate to resolve such payment. If dispute through consultation, and upon such resolution OZ shall promptly deliver written instructions to the Escrow Agent does receive such written objection within such TEN (10) day period or if for authorizing the transfer to the Company of any other reason Escrow Agent in good faith shall elect not to make such paymentMilestone Payment agreed by the Company and OZ. For the avoidance of doubt, Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement or OZ may waive any requirement of completion of a final judgment in court. However, Escrow Agent shall have the right Milestone Event at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of authorize the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or transfer any portion of the Deposit by reason funds available in the Escrow Account to the Company from the Escrow Account. Furthermore, the Company shall be entitled to all interest accrued on any and all Milestone Payments. OZ and the Company hereby undertake to issue a joint written instruction to the Escrow Agent before closure of the insolvency or failure Escrow Account to instruct the Escrow Agent to transfer and deliver to the Company, upon closure of the institution of depository with whom Escrow Account, all interest accrued on all Milestone Payments but not previously transferred and delivered to the escrow account is maintained. Upon Company; provided that such joint written instruction shall be given to the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved no later than January 15, 2008 if the Escrow Account has not been closed by December 31, 2007. OZ hereby agrees, and released from all the other parties hereto acknowledge, that any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as written instructions delivered to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent authorizing the transfer of any Milestone Payment shall have include only the right to: (i) hold and retain all or any part of wire transfer instructions most recently provided to OZ in writing by the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;Company.
Appears in 1 contract
Escrow. a. 4.01. Seller and Purchaser hereby appoint Xxxxx X. Xxxx, Esq. as escrow agent hereunder (the “Escrow Agent”) and the Escrow Agent hereby accepts such appointment.
4.02. The Escrow Agent will hold the Share Certificates in escrow. Seller will deliver the Share Certificates to the Escrow Agent as provided in Section 3.02(a) hereof and the Escrow Agent shall hold notify Purchaser of its receipt of same and disburse retain the Deposit Share Certificates in accordance with escrow until the following provisions:
i. If the Closing occurs, then the Closing. The Escrow Agent shall deliver the Deposit Share Certificates to Seller.
ii. If for any reason Purchaser at the Closing, however, in the event that the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions terms of this Agreement, the Escrow Agent will deliver the Share Certificates to Seller (or to Seller’s transfer agent for reissuance to Seller).
4.03. Purchaser will deliver the Purchase Price to the Escrow Agent pursuant to the terms of Section 2.01(b) hereof .
4.04. In the event of any dispute or disagreement between Purchaser and Seller with respect to the Purchase Price or the Share Certificates which cannot be resolved by them, such dispute or disagreement shall be submitted exclusively by any party hereto to binding arbitration before a single arbitrator of the American Arbitration Association in Xxxxxx County, Texas, which will apply the then prevailing commercial rules of arbitration of the American Arbitration Association. The determination of any such arbitrator (the “Arbitrator’s Award”) shall be binding and conclusive upon the parties hereto and may be enforced in any court of competent jurisdiction. By their execution hereof, the parties hereto consent and irrevocably submit to the in personam jurisdiction of the American Arbitration Association located in Xxxxxx County, Texas and agree that any process in any such action or proceeding may be served upon them personally or by certified or registered mail, return receipt requested, or by a nationally recognized overnight courier service, with the same force and effect as if personally served upon them in such County and State. The parties hereto each waive any claim that any such venue is not a convenient forum for any such action or proceeding and any defense of lack of in personam jurisdiction with respect thereto.
4.05. The Escrow Agent shall not be liable to Seller or Purchaser by reason of any error of judgment or for any action act done or step taken or omitted by Escrow Agent him in good faith and believed by Escrow Agent to be authorized or within its rights for any mistake of fact or powers conferred upon law or for anything which it by may do or refrain from doing in connection with this Agreement, except for any damage liability to Seller or Purchaser caused by or arising out of the Escrow Agent's own ’s gross negligence or willful defaultmisconduct.
4.06. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, The Escrow Agent shall be relieved entitled to rely on, and released from shall be protected in acting in reliance upon, any liability under instructions or directions furnished to him in writing by Seller or Purchaser pursuant to any provisions of this AgreementAgreement and shall be entitled to treat as genuine, except in connection with Escrow Agent's gross negligence any letter, paper, or willful defaultother document furnished to him and believed by him to be genuine and to have been signed and presented by the proper party or parties.
vi4.07. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, The Escrow Agent shall have will, in consideration of his services hereunder, be paid $500 by Purchaser on the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;Closing Date.
Appears in 1 contract
Samples: Stock Purchase Agreement (Allmarine Consultants CORP)
Escrow. a. At Closing, Buyer shall pay ten percent (10%) of the Purchase Price, which is equal to One Hundred Ten Thousand Dollars ($110,000) (the “Escrowed Funds”) to an escrow account (“Escrow Agent Account”) opened by Xxxxxxxx Ingersoll & Rooney PC (“Escrow Agent”), pursuant to an escrow agreement having the terms and provisions of this Section 2.06 which agreement has been attached as Exhibit A to this Agreement. The Escrow Account shall hold be interest bearing and disburse shall not be commingled with any other funds. Interest earned on the Deposit Escrow Account shall be paid in accordance with the following provisions:
i. payment of the principal of the Escrow Account. The Escrow Account shall be security for the payment of indemnity claims made by Buyer under Section 12 of this Agreement. If there are no unsatisfied indemnity claims made by Buyer on or before the six (6) month anniversary of the Closing occursDate, then the Escrowed Funds, including interest, shall be paid to Seller. If there is an unsatisfied indemnity claim made by Buyer that remains outstanding on the six (6) month anniversary of the Closing Date, the Escrow Agent shall deliver maintain sufficient Escrowed Funds to cover the Deposit amount of the unpaid indemnity claim and shall distribute the balance, if any, of the Escrowed Funds to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, The Escrow Agent shall give written notice maintain sufficient Escrowed Funds to cover the amount of any unsatisfied indemnity claim until both Buyer and Seller agree on the disposition of the Escrow Account or a court having jurisdiction orders disposition of the funds held in the Escrow Account. In the event there shall be any dispute between the parties as to the other party proper disposition of such demand. If the Escrow Agent does not receive a written objection from Account, the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such payment, Escrow Agent shall continue not disburse the Escrow Account to hold any party. In the event of such amount until otherwise directed by written instructions from a dispute, the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to either maintain the Escrow Account or deposit said Escrow Account proceeds with a court of competent jurisdiction to await determination or an accord and mutual agreement of Seller and Buyer with respect to the disposition of the escrowed proceeds amount. MSI, Seller and interest thereonBuyer, if anyby their execution hereof, with indemnify and agree to hold the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice harmless from any and all claims or causes of such deposit action, damages or injuries arising out of or in any way related to Seller and Purchaser. Upon such depositthe performance of its duties in connection herewith, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement except for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties matters arising out of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own ’s gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful defaultintentional misconduct.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Stock Purchase Agreement (Mace Security International Inc)
Escrow. a. If there is any dispute as to whether Escrow Agent shall hold and disburse the Deposit in accordance with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall is obligated to deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice or as to the other party of such demand. If Escrow Agent does not receive a written objection from the other party whom same are to the proposed payment within TEN (10) days after the giving of such noticebe delivered, Escrow Agent is hereby authorized will not be obligated to make any delivery, but in such payment. If event, may hold same until receipt by Escrow Agent does receive of an authorization, in writing, signed by Seller and Buyer directing the disposition of same, and in the event either party would be entitled to the Deposit, or other monies or documents held by Escrow Agent, the parties agree to forthwith execute such joint written objection within authorization upon the request of any party hereto. In the absence of such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentauthorization, Escrow Agent shall continue to may hold such amount the Deposit, or other monies or documents in its possession until otherwise directed by written instructions from the final determination of the rights of the parties to this Agreement in an appropriate proceeding. If such written authorization is not given or a final judgment in court. Howeverproceedings for such determination are not begun and diligently continued, Escrow Agent shall have the right at any time may, but is not required to, bring an appropriate action or proceeding for leave to deposit the escrowed proceeds and interest thereonsaid funds or documents in court, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of pending such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreementdetermination. Escrow Agent shall not be liable responsible for any action taken acts or omitted by omissions of Escrow Agent, unless same are a result of the gross negligence, willful misconduct or fraud. Otherwise, provided Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit acts in accordance with this Agreement, Escrow Agent shall be relieved and released from have no liability following the delivery of any liability under funds or documents which Escrow Agent holds pursuant to this Agreement. If Escrow Agent elects to bring an appropriate action or proceeding in accordance with the terms of this Article IX, except then Escrow Agent shall be entitled to recover all of its reasonable attorneys’ fees and costs incurred in connection with the action from the party not entitled to receive the Deposit or other monies or documents as determined by a court of competent jurisdiction. The parties agree that they will hold Escrow Agent harmless from and indemnify it against any costs or liabilities, including reasonable attorneys’ fees, resulting from any action brought against Escrow Agent's , unless due to Escrow Agent’s willful misconduct, gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreementnegligence, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;fraud.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Escrow. a. Escrow Agent shall hold and disburse Due to the Deposit in accordance with the following provisions:
i. If the Closing occursrelated-party nature of this transaction, then the Escrow Agent Debtor shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment certificates of the Deposit, Escrow Agent shall give written notice title (“Titles”) to the other Titled Collateral (as indicated on Exhibit A) to an independent, third-party of such demand. If escrow agent (the “Escrow Agent does not receive a written objection from Agent”) who shall hold the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement Titles for the sole purpose benefit of agreeing to act as Escrow Agent in accordance with this ArticleSecured Party. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement The rights and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial set forth in nature the Escrow Agreement between Debtor, Secured Party, and the Escrow Agent of even date herewith (the “Escrow Agreement”). Prior to delivery of the Titles, Debtor shall note the Security Interest on the Titles, as required for perfection of the Security Interests granted therein. The Security Interest in the Non-Titled Collateral (as indicated on Exhibit A) shall be expressly limited perfected by filing a Financing Statement with the Tennessee Secretary of State. The rights and privileges of Secured Party under this Agreement shall inure to the safekeeping benefit of its successors and disposition assigns. All representations, warranties and agreements of Debtor contained in this Agreement shall bind Debtor’s personal representatives, heirs, successors and assigns. If any provision of this Agreement shall for any reason be held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision hereof, but this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. Debtor Further Represents, Warrants and Agrees That: The Collateral is personalty and that it is not and will not be affixed to real estate in such manner as to become a fixture or part of the Deposit real estate. If the Collateral is, or in accordance with the provisions opinion of this Agreement. Escrow Agent shall not be liable for Secured Party may become, part of any action taken or omitted real estate Debtor will obtain and deliver to Secured Party a written waiver by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss the record owner of the real estate of all interest in the Collateral and a written subordination by any person who has a lien on the real estate which is or may be superior to this security interest. The statement herein as to Debtor’s residence or place of business and possession and location of the Collateral specifically described herein are true, and that Debtor has absolute title to the Collateral listed specifically above free and clear of all liens, encumbrances and Security Interests except the Security Interest hereby given to Secured Party and other rights, if any, of Secured Party, and Debtor will defend the Collateral against the claims and demands of all persons. Without the prior written consent of Secured Party, Debtor will not sell, exchange, lease or otherwise dispose of the Collateral or any portion of the Deposit by reason of the insolvency Debtor’s rights therein or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, or permit any lien or Security Interest to attach to same except that created by this Agreement and other rights, if any, of Secured Party; Debtor will maintain the Collateral in connection with Escrow Agent's gross negligence good condition and repair and will pay and discharge all taxes, levies and other impositions levied thereon as well as the cost of repairs to or willful default.
vimaintenance of the same and will not permit anything to be done that may impair the value of any of the Collateral; if Debtor fails to pay such sums, Secured Party may do so for Debtor’s account, adding the amount thereof to the other accounts secured hereby; Debtor will at all times keep the Collateral insured in such form, in such companies, in such amounts and against such risks as may be acceptable to Secured Party. In Debtor will not permit any of the event Collateral to be removed from the location specified herein, except for temporary periods in the normal and customary use thereof, without the prior written consent of Secured Party, and will permit Secured Party to inspect the Collateral at any time. Debtor will not permit anything to be done that a dispute shall arise in connection with may impair the value of any of the Collateral or the security intended to be afforded by this Agreement. Debtor will pay all costs of filing any financing, continuation or as termination statements with respect to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined Security Interest created by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;. Secured Party is hereby appointed Debtor’s Attorney in Fact to do, at Secured Party’s option and Debtor’s expense, all acts and things which Secured Party may deem necessary to perfect and continue perfected the Security Interest created by this Agreement and to protect the Collateral.
Appears in 1 contract
Escrow. a. Escrow Agent shall hold (a) Cellegy will withhold the stock portion of the Initial Consideration and disburse the Deposit in accordance deposit with the following provisions:
i. If Escrow Agent, as soon as reasonably practicable after the Closing, the certificates for the Escrow Shares (as defined below). The Escrow Shares will be issued in the name of the Stockholders but withheld from the Cellegy Common Stock to be delivered to Stockholders at the Closing. For this purpose, "Escrow Shares" means all of the shares of Cellegy Common Stock that are included in the Initial Consideration. Any shares of Cellegy Common Stock or other equity securities issued or distributed by Cellegy (including shares issued upon a stock split, stock dividend, recapitalization or other similar event) in respect of Escrow Shares shall also be withheld in the Escrow Funds and shall also be considered to be Escrow Shares. In addition, the full amount of any Earn-Out Consideration paid or payable with respect to the period ending forty-eight (48) months after the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur Date will be withheld by Cellegy and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, deposited with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or held as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until Escrow. Any Earn-Out Consideration that is deposited into the Escrow will be referred to herein as the "Escrow Earn-Out Consideration." The Escrow Shares and any Escrow Earn-Out Consideration may be collectively referred to herein as the "Escrow Funds." Cash dividends on Escrow Shares or interest on any cash Escrow Earn-Out Consideration shall be added to the Escrow Funds and shall not be distributed to the record holders of such dispute is settled or finally determined by litigationEscrow Funds. Cellegy will hold the certificates representing such Escrow Funds as security for the Stockholders' indemnification obligations for Damages under Article X. Except as may be expressly provided otherwise in this Agreement with respect to breach of a Stockholder's representations and warranties under Article XI, arbitration, or otherwise; the payment of any Escrow Funds in satisfaction of any indemnification obligations under Article X shall be made in proportion to the Escrow Funds (iieach valued at the Cellegy Average Price Per Share as of the date that such Escrow Shares are forfeited to satisfy such indemnity obligations) deposit held for each Stockholder in the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;Fund.
Appears in 1 contract
Samples: Share Purchase Agreement (Cellegy Pharmaceuticals Inc)
Escrow. a. Concurrently with the full execution of this Contract of Sale, Purchaser has delivered to Escrow Agent, a check(s) (subject to collection) in the amount of $100,000.00 as the downpayment (the "Downpayment"). Escrow Agent shall hold and disburse deposit the Deposit in accordance with the following provisions:
i. If the Closing occurs, then the Downpayment into an interest-bearing account(s) maintained at a federally insured financial institution(s). Escrow Agent shall deliver the Deposit to Seller.
iiDownpayment in accordance with this Contract of Sale, or a joint instruction signed by Seller and Purchaser, or separate instructions of like tenor signed by Seller and Purchaser, or a final judgment of a court of competent jurisdiction. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of hereby is authorized and directed to deliver the DepositDownpayment to Seller if, Escrow Agent shall give written notice to the other party of such demandas and when title closes. If Escrow Agent does not shall receive a written request by one party for the release of the escrow, Escrow Agent will give a copy thereof to the other party. If Escrow Agent shall not receive an objection from the other party to the proposed payment within TEN five (105) days after the giving of such noticebusiness days, then Escrow Agent is hereby authorized to make such paymentshall so release the Downpayment. If Escrow Agent does receive such written objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentreceives an objection, then Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement or a final judgment Downpayment in courtaccordance with the terms hereof. However, Escrow Agent shall have the right at any time to may deposit the escrowed proceeds Downpayment with a court of competent jurisdiction, and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written upon notice of such deposit to Seller and Purchaser. Upon Purchaser of such deposit, Escrow Agent shall be relieved and discharged of all have no further obligations and responsibilities responsibility or liability hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to may act as upon any instruction or other writing believed by Escrow Agent in accordance with this Articlegood faith to be genuine and to be signed or presented by the proper persons. Except as otherwise noted herein, any interest or income thereon shall be paid to the party entitled to receive the Downpayment; provided, however, that if Seller shall receive the interest at Closing then such interest shall serve as a credit against the Purchase Price. It is understood and agreed that if a check for any portion of the Downpayment shall fail to clear then Escrow Agent shall deliver the portion, if any, of the Downpayment that shall have no duties cleared (together with any interest earned thereon) to Seller and this Contract of Sale shall terminate and neither party shall have any further obligations hereunder to the other except that Seller shall be permitted to attempt to collect from Purchaser on the check that shall have failed to clear by commencing litigation or responsibilities except those set forth in this Agreement and otherwise as provided for by law. Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as merely a stakeholder at their request stakeholder, and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial shall not be liable for any act or omission unless taken or suffered in nature and shall be expressly limited to the safekeeping and disposition of the Deposit bad faith, in accordance with the provisions willful disregard of this AgreementContract of Sale or involving gross negligence. Escrow Agent shall not be liable for the failure of the institution(s) in which the Downpayment has been deposited or for establishing accounts in excess of applicable guaranty limits. Seller and Purchaser agree to indemnify and hold Escrow Agent harmless from and against any reasonable costs, claims or expenses incurred in connection with the performance of the Escrow Agent's duties hereunder, unless such costs, claims or expenses were occasioned by Escrow Agent's gross negligence, bad faith or willful disregard of this Contract of Sale. Escrow Agent shall not be bound by any agreement between Seller and Purchaser (other than this Contract of Sale), whether or not Escrow Agent has knowledge thereof, and Escrow Agent's only duties and responsibilities shall be to hold, and to dispose of, the Downpayment and interest earned thereon in accordance with this Contract of Sale. Escrow Agent may consult with counsel, and any opinion of counsel shall be full and complete authorization and protection in respect to any action taken or omitted by Escrow Agent hereunder in good faith and believed by Escrow Agent in reliance upon such opinion. All instructions or notices given to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved in writing and released from any liability under delivered in accordance with the requirements of this AgreementContract of Sale. For purposes of this paragraph, such instructions and notices shall be deemed delivered on the date of delivery, if by hand, or on the date of mailing if mailed, except in connection with Escrow Agent's gross negligence that no instruction or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as notice to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which be deemed effectively delivered to Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;until actual receipt thereof by Escrow Agent.
Appears in 1 contract
Samples: Contract of Sale (BRT Realty Trust)
Escrow. a. (a) Subject to Sections 2.1 and 2.2 of this Agreement, on each of the Issuance Dates, Quarterdeck shall, on behalf of each of the Limbex Shareholders, deliver to the Escrow Agent, to the extent that each such Limbex Shareholder receives Merger Consideration, and the Escrow Agent shall hold in escrow, Quarterdeck Common Stock certificates in the names of each such Limbex Shareholder representing the number of shares, if any, of Quarterdeck Common Stock issued to such Limbex Shareholder on such date set forth on Exhibit A hereto and disburse the Deposit cash consideration, if any, paid to such Limbex Shareholder on such date. The shares of Quarterdeck Common Stock delivered into escrow are referred to as the "Limbex Escrow Shares;" the cash consideration delivered into the Cash Escrow Account (as defined below) is referred to as the "Escrow Cash;" and the Limbex Escrow Shares and the Escrow Cash are collectively referred to as the "Escrow Consideration."
(b) Concurrently with the delivery of any Limbex Escrow Shares to the Escrow Agent pursuant hereto, each Limbex Shareholder shall execute a stock power with respect to such Limbex Shareholder's certificates evidencing such shares, which stock power shall be delivered to the Escrow Agent and attached to the certificates evidencing such shares. All Escrow Cash delivered by Limbex Shareholders to the Escrow Agent pursuant hereto shall be held in a single separate account (the "Cash Escrow Account") and shall be invested in accordance with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties Committee to this Agreement or a final judgment in courtthe Escrow Agent. However, The Limbex Escrow Agent shall have Shares and the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent Cash shall be relieved held and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for distributed by the sole purpose of agreeing to act as Escrow Agent in accordance with the terms and conditions of this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository onlyAgreement.
iv. Escrow Agent (c) Promptly following the issuance thereof, Quarterdeck shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given provide a written notice to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited (with a copy to the safekeeping and disposition Committee) of the Deposit in accordance with total number of shares of Quarterdeck Common Stock issued to each Limbex Shareholder, the provisions amount of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith cash consideration paid to each Limbex Shareholder and believed by Escrow Agent the number of shares of Quarterdeck Common Stock and the amount of cash consideration to be authorized or within its rights or powers conferred upon it deposited into escrow by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful defaulteach Limbex Shareholder.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Inference Corp /Ca/)
Escrow. a. Upon execution of this Agreement, Pledgor shall deposit with Escrow Agent shall hold and disburse the Deposit in accordance Pledged Shares, along with the following provisionsaforesaid Assignment (all of which items shall hereinafter be referred to as the "Pledged Documents") to be held in escrow for future delivery as follows:
i. If the Closing occurs, then the a. Escrow Agent shall deliver the Deposit Pledged Documents to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment Pledgee within TEN ten (10) days after receiving an affidavit signed by Pledgee stating that:
(i) Pledgor is in default under the giving Note and all periods of time within which to cure such noticedefault have expired;
(ii) Pledgee is accelerating the entire unpaid balance due under the Note; and
(iii) Pledgee demands delivery of the Pledged Documents. Pledgee shall simultaneously furnish Pledgor with a copy of said affidavit. Upon such delivery of the Pledged Documents, Escrow Agent's duties hereunder shall terminate.
b. In the event Escrow Agent has not delivered the Pledged Documents pursuant to subparagraph a above, then Escrow Agent shall deliver the Pledged Documents to Pledgor within ten (10) days after receipt of the original of the Note marked "paid in full," accompanied by instructions from Pledgor indicating that said Note has been paid in full and the Pledged Documents shall be delivered to Pledgor at the address specified therein. Upon such delivery of the Pledged Documents, Escrow Agent's duties hereunder shall terminate. Pledgee agrees to deliver the Note to Pledgor marked "paid in full," immediately upon satisfaction thereof.
c. Upon execution of this Agreement, Pledgor shall deliver to the Escrow Agent Stock Certificate Number 030121, representing Ten Million Six Hundred Sixty Six Thousand Six Hundred Ten (10,666,610) shares of common stock of Centrack International, Inc. Pledgor shall further execute an endorsement/assignment of said Certificate appointing the Escrow Agent as Attorney to effectuate division and reissuance of same as follows:
1. One Million (1,000,000) shares to Pledgor, same to be held in escrow by the Escrow Agent pursuant to the terms of this Agreement.
2. Thirty Thousand (30,000) shares to the Pledgee as consideration for the loan being extended pursuant to the Promissory Note attached hereto.
3. Nine Million Six Hundred Sixteen Thousand Six Hundred Ten (9,636,610) shares which shall be forwarded to Pledgor upon receipt by the Escrow Agent. Nothing hereinabove withstanding to the contrary, until such time as the above division of the stock is accomplished, the total number of shares shall constitute collateral for payment of the obligations pursuant to this Agreement. Pledgor and Pledgee hereby acknowledge that the Escrow Agent is hereby authorized making no representations as to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period right or if for any other reason Escrow Agent in good faith shall elect not legality pertaining to make such payment, Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk above division of the Court stock or its sale in the event of Orange Countythe default, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved Pledgor and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Pledgee each agree that Escrow Agent shall have no duties liability resulting from the inability to accomplish the terms of this Pledge Agreement due to the inability to divide, transfer or responsibilities except those set forth sell the stock. Pledgor and Pledgee each agree to indemnify and hold Escrow Agent harmless in this Agreement regard and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected otherwise provided for in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Pledge and Escrow Agreement (Centrack International Inc)
Escrow. a. Any Escrow Agent shall receiving funds is authorized and agrees by acceptance thereof to promptly deposit and to hold same in escrow and to disburse the Deposit same subject to clearance thereof in accordance with terms and conditions of this Agreement. Failure of clearance of funds shall not excuse performance by the following provisions:
i. If PURCHASER. In the Closing occurs, then the Escrow Agent shall deliver the Deposit event of doubt as to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no its duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with liabilities under the provisions of this Agreement, the Escrow Agent may, in its sole discretion, continue to hold the monies which are the subject of this escrow until the parties mutually agree to the disbursement thereof, or until a judgment of a court of competent jurisdiction shall determine the rights of the parties thereto, or it may deposit all the monies then held pursuant to this Agreement with the Clerk of the Circuit Court of Broward County, Florida, and upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully terminate, except to the extent of accounting for any monies theretofore delivered out of escrow. In the event of any suit between PURCHASER and SELLER wherein the Escrow Agent is made a party by virtue of acting as such Escrow Agent hereunder, or in the event of any suit wherein Escrow Agent interpleads the subject matter of this escrow, the Escrow Agent shall be entitled to recover a reasonable attorney’s fee and costs incurred, said fees and costs to be charged and assessed as court cost in favor of the prevailing party. All parties agree that the Escrow Agent shall not be liable to any party or person whomsoever for any action taken mis delivery to PURCHASER or omitted by Escrow Agent in good faith and believed by Escrow Agent SELLER of monies subject to this escrow, unless such mis delivery shall be authorized due to willful breach of this Agreement or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of on the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit Escrow Agent. PURCHASER acknowledges that Xxxxxx Agent has been retained as counsel for the Deposit SELLER in an appropriate court of law, following which this matter and other matters and agrees that Escrow Agent shall thereby may continue to represent SELLER in this matter and thereafter be relieved any and released all present and future matters including any dispute resulting in litigation arising from any liability or obligation under the obligations set forth in this Agreement;.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Escrow. a. Within two business days following the Effective Date hereof, Purchaser has delivered to Escrow Agent, a check(s) (subject to collection) in the amount of $50,000.00 as the downpayment (the "Downpayment"). On or before the expiration of the Due Diligence Period, Purchaser shall deliver a certified check or wire transfer to Escrow Agent shall hold for an additional $50,000.00 which is to be added to the Downpayment and disburse the Deposit held in escrow in accordance with the following provisions:
i. If terms hereof. Escrow Agent shall deposit the Closing occurs, then the Downpayment into an interest-bearing account(s) maintained at a federally insured financial institution(s). Escrow Agent shall deliver the Deposit to Seller.
iiDownpayment in accordance with this Contract, or a joint instruction signed by Seller and Purchaser, or separate instructions of like tenor signed by Seller and Purchaser, or a final judgment of a court of competent jurisdiction. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of hereby is authorized and directed to deliver the DepositDownpayment to Seller if, Escrow Agent shall give written notice to the other party of such demandas and when title closes. If Escrow Agent does not shall receive a written request by one party for the release of the escrow, Escrow Agent will give a copy thereof to the other party. If Escrow Agent shall not receive an objection from the other party to the proposed payment within TEN five (105) days after the giving of such noticebusiness days, then Escrow Agent is hereby authorized to make such paymentshall so release the Downpayment. If Escrow Agent does receive such written objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentreceives an objection, then Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement or a final judgment Downpayment in courtaccordance with the terms hereof. However, Escrow Agent shall have the right at any time to may deposit the escrowed proceeds Downpayment with a court of competent jurisdiction, and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written upon notice of such deposit to Seller and Purchaser. Upon Purchaser of such deposit, Escrow Agent shall be relieved and discharged of all have no further obligations and responsibilities responsibility or liability hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to may act as upon any instruction or other writing believed by Escrow Agent in accordance with this Articlegood faith to be genuine and to be signed or presented by the proper persons. Except as otherwise noted herein, any interest or income thereon shall be paid to the party entitled to receive the Downpayment; provided that if Seller shall receive the interest at Closing then such interest shall serve as a credit against the purchase price. It is understood and agreed that if a check for any portion of the Downpayment shall fail to clear then Escrow Agent shall deliver the portion, if any, of the Downpayment that shall have no duties cleared (together with any interest earned thereon) to Seller and this Contract shall terminate and neither party shall have any further obligations hereunder to the other except that Seller shall be permitted to attempt to collect from Purchaser on the check that shall have failed to clear by commencing litigation or responsibilities except those set forth in this Agreement and otherwise as provided for by law. Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as merely a stakeholder at their request stakeholder, and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial shall not be liable for any act or omission unless taken or suffered in nature and shall be expressly limited to the safekeeping and disposition of the Deposit bad faith, in accordance with the provisions willful disregard of this AgreementContract or involving gross negligence. Escrow Agent shall not be liable for the failure of the institution(s) in which the Downpayment has been deposited or for establishing accounts in excess of applicable guaranty limits for so long as the Xxxxxxx Money is held in a FDIC insured account. Seller and Purchaser agree to indemnify and hold Escrow Agent harmless from and against any reasonable costs, claims or expenses incurred in connection with the performance of the Escrow Agent's duties hereunder, unless such costs, claims or expenses were occasioned by Escrow Agent's bad faith or its willful disregard of this Contract. Escrow Agent shall not be bound by any agreement between Seller and Purchaser, whether or not Escrow Agent has knowledge thereof, and Escrow Agent's only duties and responsibilities shall be to hold, and to dispose of, the Downpayment and interest earned thereon in accordance with this Contract. Escrow Agent may consult with counsel, and any opinion of counsel shall be full and complete authorization and protection in respect to any action taken or omitted by Escrow Agent hereunder in good faith and believed by Escrow Agent in reliance upon such opinion. All instructions or notices given to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved in writing and released from any liability under delivered in accordance with the requirements of this AgreementContract. For purposes of this paragraph, such instructions and notices shall be deemed delivered on the date of delivery, if by hand, or on the date of mailing if mailed, except in connection with Escrow Agent's gross negligence that no instruction or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as notice to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which be deemed effectively delivered to Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;until actual receipt thereof by Escrow Agent.
Appears in 1 contract
Samples: Contract of Sale (BRT Realty Trust)
Escrow. a. Absent an election by Seller pursuant to Section 3.1 to permit Buyer and the Guarantors to enter into a separate arrangement to secure the indemnity obligations of Seller, the following provisions shall apply. On or prior to the Closing Date, Buyer shall deliver to Escrow Agent shall hold and disburse the Deposit Escrow Amount. The Escrow Amount will be held by Escrow Agent in the Escrow Account, to secure the indemnity obligations of Seller under Section 13.1 of this Agreement, in accordance with the applicable terms and conditions of this Agreement and of the Escrow Agreement. The Escrow Amount will be held in the Escrow Account for such purpose for a period of eighteen (18) months following provisions:
i. If the Closing occursDate or such shorter period as Buyer may agree, then and at the end of such period, all amounts not theretofore released to or upon the instruction of Buyer in respect of Losses (as defined in Section 13.1) for which Seller is obligated to indemnify the Buyer Indemnified Parties (as defined in Section 13.1), together with all income actually earned thereon, shall be released to or upon the instruction of Seller, all in accordance with the applicable terms and conditions of this Agreement and of the Escrow Agreement, provided that an amount equal to the amount claimed by Buyer pursuant to any unresolved indemnification claims shall remain in the Escrow Account until such claims are resolved. The fees and expenses of Escrow Agent shall deliver be paid first out of income actually earned on amounts held in the Escrow Account (including the Deposit and the Escrow Amount), and to the extent such income is not sufficient therefor, such fees and expenses shall be paid one- half by Seller and one-half by Buyer. References in this Article 3 to the release of amounts from the Escrow Account (including the application of the Deposit to Seller.
ii. If for any reason the Closing does not occur Purchase Price pursuant to Section 3.1(b) and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent Section 3.2(b)) with income earned thereon shall give written notice be deemed to refer to the other party portion of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereonincome, if any, with remaining after the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent satisfaction in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties full of the Escrow Agent hereunder are purely ministerial in nature Agent’s fees and shall be expressly limited to the safekeeping and disposition of the Deposit expenses in accordance with the provisions of this Escrow Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Asset Purchase Agreement (Lodgenet Entertainment Corp)
Escrow. a. Escrow Agent shall is authorized and agrees by acceptance thereof to promptly deposit the Earnest Money as provided herein and to hold same in escrow and disburse xx xxxburse the Deposit same in accordance with the following provisions:
i. If the Closing occurs, then the terms and conditions of this Agreement. The sole duties of Escrow Agent regarding the Earnest Money shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur be those described herein, and either party makes a written demand upon Escrow Agent for payment xxxxx be under no obligation to determine whether the other parties hereto are complying with any requirements of law or the Deposit, terms and conditions of any other agreements among said parties. Escrow Agent may conclusively rely upon and shall give be protected in acting upon any written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized consent, order or other document believed by it to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period be genuine and to have been signed 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 presented by written instructions from the proper party or parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this ArticleAgreement. Escrow Agent shall have no duties duty or responsibilities except those liability to verify any such written notice, consent, order or other document, and its sole responsibility shall be to act as expressly set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for under no obligation to institute or defend any action taken action, suit or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise proceeding in connection with this Agreement. If Purchaser and Seller execute any separate escrow instructions or an escrow agreement with Escrow Agent, then in the event of a conflict between the terms of such escrow instructions or as to escrow agreement and the rights terms of the parties in and to, or the disposition ofthis Agreement, the Deposit, terms of this Agreement shall control. Escrow Agent shall have also execute this Agreement solely for the right to: (i) hold purpose of acknowledging its agreement with and retain all or any part understanding of the Deposit until such terms of this Section 15 and the other provisions of this Agreement relative to receipt, escrow, investment and disbursement of the Earnest Money. Failure of Escrow Agent to execute this Agreemenx xxxxx not affect the validity of this Agreement as between Seller and Purchaser. Notwithstanding anything in this Section to the contrary, in the event of a dispute is settled or finally determined by litigation, arbitrationbetween Seller and Purchaser sufficient in the sole discretion of Escrow Agent to justify its doing so, or otherwise; (ii) deposit in the Deposit in an appropriate event that Escrow Agent has not disbursed the Earnest Money on or before the date of Closing pursuant hereto, Xxxxxx Agent shall be entitled to tender into the registry or custody of any court of lawcompetent jurisdiction the Earnest Money, following which together with such pleadings as it may deem apprxxxxxxx, and thereupon be discharged from all further duties and liabilities under this Agreement with respect to the Earnest Money (other than with respect to any liabilities for wxxxxxx misconduct or breach of trust by Escrow Agent). Any such legal action may be brought in such court as Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;determine to have jurisdiction thereof.
Appears in 1 contract
Escrow. a. 1.11.1 Pursuant to the Confidentiality Agreement, Parent has delivered the Initial Deposit to the Escrow Agent shall hold and disburse to be held in an account (the “Deposit Escrow Account”) in accordance with the following provisions:
i. If the Closing occurs, then Escrow Agreement. Each of Parent and Seller shall instruct the Escrow Agent to release the Initial Deposit plus any interest accrued thereon (the “Initial Deposit Amount”) to the Closing Agent for delivery to Seller at the Closing as a credit against the Closing Purchase Price, subject to the terms hereof and the Escrow Agreement, provided that if this Agreement is terminated prior to the Closing for any reason, each of Purchaser and Seller shall deliver promptly thereafter instruct the Escrow Agent to release the Initial Deposit Amount directly to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN 1.11.2 Within two (102) days Business Days after the giving of such noticeEffective Date, Escrow Agent is hereby authorized Purchaser shall deliver (or cause to make such payment. If Escrow Agent does receive such written objection within such TEN (10be delivered) day period or if for any other reason Escrow Agent in good faith shall elect not the Signing Deposit to make such payment, Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial to be held in nature and shall be expressly limited to the safekeeping and disposition of the Deposit Escrow Account in accordance with the provisions of this Escrow Agreement. Escrow Agent Each of Purchaser and Seller shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by instruct the Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for release the Signing Deposit plus any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of interest accrued thereon (the “Signing Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as Amount”) to the rights of Closing Agent for delivery to Seller at Closing as a credit against the parties in and toClosing Purchase Price; provided, or the disposition ofthat, the Deposit, Escrow Agent shall have the right to: if (i) hold and retain all Seller breaches its obligations hereunder in any material respect prior to Closing or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit any of the Deposit in an appropriate court conditions to Purchaser’s obligation to effect the Closing hereunder is not satisfied by the End Date through no fault of lawany Buyer Party, following which each of Purchaser and Seller shall promptly thereafter instruct the Escrow Agent shall thereby to release the Signing Deposit Amount to Purchaser; provided further, that if this Agreement is terminated or the Closing fails to occur by the End Date for any other reason, each of Purchaser and thereafter be relieved and released from any liability or obligation under this Agreement;Seller shall, promptly following the date of such termination, instruct the Escrow Agent to release the Signing Deposit Amount directly to Seller.
Appears in 1 contract
Samples: Asset Purchase Agreement (Resolute Forest Products Inc.)
Escrow. a. The Deposit and any other sums which the parties agree shall be held in escrow (herein collectively called the "Escrow Agent Deposits"), together with all interest earned thereon, shall hold be held by the Escrow Agent, in trust, and disburse the Deposit disposed of only in accordance with the following provisions:
i. (a) The Escrow Agent shall invest the Escrow Deposits in government insured interest-bearing instruments satisfactory to both Buyer and Seller, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, and shall promptly provide Buyer and Seller with confirmation of the investments made.
(b) If the Closing occurs, then the Escrow Agent shall deliver the Deposit to SellerEscrow Deposits to, or upon the instructions of, Seller on the Closing Date by wire transfer.
ii(c) If for any reason the Closing does not occur, the Escrow Agent shall deliver the Escrow Deposits and all interest earned thereon to Seller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions of this Subsection 12.1(c). If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent for payment of the DepositEscrow 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 written objection from the other party to the proposed payment within TEN 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 TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentperiod, the Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement signed by Seller and Buyer or a final judgment in of a court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. (d) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties Escrow Agent shall not be deemed to be the agent of either of the Escrow Agent hereunder are purely ministerial in nature parties, and shall be expressly limited to that the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable to either of the parties for any action or omission on its part taken or omitted made in good faith,and not in disregard of this Agreement, but shall be liable for its negligent acts and for any loss, cost or expense incurred by Seller or Buyer resulting from the Escrow Agent's mistake of law respecting the Escrow Agent's scope or nature of its duties. Seller and Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including reasonable attorneys' fees, incurred in connection with the performance of the Escrow Agent's duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in good faith bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.
(e) Buyer shall pay any income taxes on any interest earned on the Deposit. Buyer represents and believed by warrants to the Escrow Agent to be authorized or within that its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. taxpayer identification number is ____________________.
(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 not have any liability or obligation for loss hold the Escrow Deposits and the interest earned thereon, in escrow, and shall disburse the Escrow Deposits, and the interest earned thereon, pursuant to the provisions of all or any portion of this Article 12.
(g) The escrow fee, if any, charged by the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved shared equally by Seller and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful defaultBuyer.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Prudential Acquisition Fund I Lp)
Escrow. a. Contractor shall be required to maintain an Escrow Agent Account with Carrier in the amount specified in Appendix E, as Escrow Balance. The escrow account shall hold and disburse be funded by Contractor depositing the Deposit amount designated in accordance with the following provisions:
i. If the Closing occursAppendix E, then the as Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period or if for any other reason no amount is listed there shall be no 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if anyDeposit, with Carrier at the clerk time of the Court execution of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that the Settlement Escrow Agent shall act hereunder Contribution, as designated in Appendix E, to be withheld from each settlement until the escrow account reaches a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties balance of the Escrow Agent hereunder are purely ministerial in nature and Balance. At any time, the balance of the Escrow Account falls below the required amount, the Settlement Escrow Contribution shall be expressly limited withheld from each Settlement until the Escrow Account balance has been replenished. The monies held in the Escrow Account may be deducted by Carrier to the safekeeping satisfy Contractor’s obligations under this Agreement including those specified in Section 4 and, Appendix C, Appendix D and disposition Appendix F and to indemnify Carrier against any and all losses suffered because of the Deposit in accordance with breaches of the provisions of this Agreement, including those specified in Sections 4, 7, 9, 10, 11, 12, and 13. The Escrow Agent shall not be liable for Account also is to insure the return to Carrier of any action taken or omitted by Escrow Agent identification and other Carrier Property in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred possession of Contractor upon it by termination of this Agreement. At the termination of this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent Carrier shall not have any liability or obligation for loss make all proper deductions from said Xxxxxx Account and make a final accounting to Contractor of all final deductions from said Xxxxxx Account and return the balance of said Escrow Account to Contractor within 45 days from the date of termination of this Agreement. Carrier shall provide Contractor with an accounting of any transaction involving the Escrow Account by either clearly indicating in individual settlement sheets the amount and description of any deduction or addition made to the Escrow Account or providing a separate monthly accounting of any portion transaction involving the Escrow Account. Contractor may request an accounting of the Deposit Escrow Account, in writing. Xxxxxxx shall credit Contractor with interest on the escrow balance, less the average advances made, quarterly, at an interest rate equal to the average yield or equivalent coupon issue yield on 91 day, 13 week Treasury Bills, as established by reason the first weekly auction by the Department of Treasury occurring on or after the first day of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful defaultquarterly interest period.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Escrow. a. Pledgor shall deposit with Escrow Agent shall hold and disburse the Deposit in accordance Pledged shares, along with the following provisionsaforesaid stock powers (all of which items shall hereinafter be referred to as the "Pledged Documents" including all stock assignments), to be held in escrow for future delivery as follows:
i. If the Closing occurs, then the a. Escrow Agent shall deliver the Deposit Pledged Documents to Seller.Pledgee within ten (10) business days after receiving an affidavit signed by Pledgee stating that:
(i) Pledgor is in default under the Note and all periods of time within which to cure such default have expired;
(ii. If for any reason ) Pledgee is accelerating the Closing does not occur and either party makes a written demand upon Escrow Agent for payment entire unpaid balance due under the Note; and
(iii) Pledgee demands delivery of the Deposit, Escrow Agent Pledged Documents. Pledgee shall give written notice to the other party simultaneously furnish Pledgor with a copy of such demandaffidavit. If Escrow Agent does has not receive a written received any protest or objection from the other party to the proposed payment Pledgor within TEN ten (10) business days after the giving of receipt of such noticeaffidavit, the Pledged Documents shall be delivered to the Pledgee. Upon such delivery of the Pledged Documents, Escrow Agent's duties hereunder shall terminate.
b. In the event Escrow Agent has received written instructions signed by both Pledgor and Pledgee notifying Escrow Agent of a sale of a portion of the Pledged, Escrow Agent is hereby authorized to make may release a portion or all of the Pledged Shares, as provided in such payment. If written instruction, and if Escrow Agent does receive such written objection within such TEN (10) day period is designated to be the recipient of the proceeds from the sale of all or if for any other reason Escrow Agent in good faith shall elect not to make such paymenta portion of the Pledged Shares, then Escrow Agent shall continue deliver any such proceeds received in accordance with such written instructions.
c. In the event Escrow Agent has not delivered the Pledged Documents pursuant to hold such amount until otherwise directed by written instructions from the parties to this Agreement or a final judgment in court. Howeversubparagraph a. above, then Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;deliver the
Appears in 1 contract
Escrow. a. Escrow Agent shall hold (a) Title Company is authorized and disburse agrees by acceptance thereof to deposit the Exxxxxx Money Deposit as required by Section 3.1(b) above. In the event of doubt as to Title Company’s duties or liabilities under the provisions of this Purchase Agreement, Title Company may, in accordance with the following provisions:
i. If the Closing occursits sole discretion, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 the subject matter of this Escrow until otherwise directed by written instructions from the parties mutually agree to this Agreement disbursement thereof, or until a final judgment in court. HoweverJudgment of a court of competent jurisdiction shall determine the rights of the parties thereto, Escrow Agent shall have the right at any time to or Title Company may deposit the escrowed proceeds and interest thereon, if any, same with the clerk of the Court court having jurisdiction of Orange Countythe dispute, Floridaand upon notifying all parties concerned of such action, all liability on the part of Title Company shall fully terminate, except to the extent of accounting for any items theretofore delivered out of Escrow. Escrow Agent In the event of any suit between Purchaser and Seller wherein Title Company is made a party by virtue of acting as escrow agent hereunder, or in the event of any suit wherein Title Company interpleads the subject matter of this Escrow, Title Company shall give be entitled to recover reasonable attorney’s fees and costs incurred, said fees and costs to be charged and assessed as court costs in favor of the prevailing party. Seller and Purchaser hereby designate Title Company as the “Reporting Person” for the transaction pursuant to Section 6045(e) of the Internal Revenue Code.
(b) Promptly following mutual execution of this Purchase Agreement, Purchaser and Seller shall cause an escrow (“Escrow”) to be opened with Title Company (the “Opening of Escrow”) by delivery to Title Company of a fully executed copy of this Purchase Agreement. Title Company shall promptly deliver to Purchaser and Seller written notice of such deposit the date of the Opening of Escrow by executing the joinder attached hereto. This Purchase Agreement shall constitute escrow instructions to Seller Title Company as well as the agreement of the parties. Title Company is hereby appointed and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing designated to act as escrow agent and instructed to deliver, pursuant to the terms of this Purchase Agreement, the documents and funds to be deposited into Escrow Agent in accordance as herein provided. The parties hereto shall execute such additional escrow instructions (not inconsistent with this ArticlePurchase Agreement as determined by counsel for Purchaser and Seller) as Title Company shall deem reasonably necessary. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon In the accuracy, acting in reliance upon the contents, and assuming the genuineness event of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with inconsistency between the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith Purchase Agreement and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the such additional escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition ofinstructions, the Deposit, Escrow Agent provisions of this Purchase Agreement shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;govern.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Virgin Trains USA LLC)
Escrow. a. 4.01. Sellers and Purchaser hereby appoint Xxxxx X. Xxxx, Esq. as escrow agent hereunder (the “Escrow Agent”) and the Escrow Agent hereby accepts such appointment.
4.02. The Escrow Agent will hold the Share Certificates in escrow. Sellers will deliver the Share Certificates to the Escrow Agent as provided in Section 3.02(a) hereof and the Escrow Agent shall hold notify Purchaser of its receipt of same and disburse retain the Deposit Share Certificates in accordance with escrow until the following provisions:
i. If the Closing occurs, then the Closing. The Escrow Agent shall deliver the Deposit Share Certificates to Seller.
ii. If for any reason Purchaser at the Closing, however, in the event that the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with the provisions terms of this Agreement, the Escrow Agent will deliver the Share Certificates to Sellers (or to AMCC’s transfer agent for reissuance to Sellers).
4.03. In the event of any dispute or disagreement between Purchaser and Sellers with respect to the Share Certificates which cannot be resolved by them, such dispute or disagreement shall be submitted exclusively by any party hereto to binding arbitration before a single arbitrator of the American Arbitration Association in Xxxxxx County, Texas, which will apply the then prevailing commercial rules of arbitration of the American Arbitration Association. The determination of any such arbitrator (the “Arbitrator’s Award”) shall be binding and conclusive upon the parties hereto and may be enforced in any court of competent jurisdiction. By their execution hereof, the parties hereto consent and irrevocably submit to the in personam jurisdiction of the American Arbitration Association located in Xxxxxx County, Texas and agree that any process in any such action or proceeding may be served upon them personally or by certified or registered mail, return receipt requested, or by a nationally recognized overnight courier service, with the same force and effect as if personally served upon them in such County and State. The parties hereto each waive any claim that any such venue is not a convenient forum for any such action or proceeding and any defense of lack of in personam jurisdiction with respect thereto.
4.04. The Escrow Agent shall not be liable to Sellers or Purchaser by reason of any error of judgment or for any action act done or step taken or omitted by Escrow Agent him in good faith and believed by Escrow Agent to be authorized or within its rights for any mistake of fact or powers conferred upon law or for anything which it by may do or refrain from doing in connection with this Agreement, except for any damage liability to Sellers or Purchaser caused by or arising out of the Escrow Agent's own ’s gross negligence or willful defaultmisconduct.
4.05. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, The Escrow Agent shall be relieved entitled to rely on, and released from shall be protected in acting in reliance upon, any liability under instructions or directions furnished to him in writing by Sellers or Purchaser pursuant to any provisions of this AgreementAgreement and shall be entitled to treat as genuine, except in connection with Escrow Agent's gross negligence any letter, paper, or willful defaultother document furnished to him and believed by him to be genuine and to have been signed and presented by the proper party or parties.
vi4.06. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, The Escrow Agent shall have will, in consideration of his services hereunder, be paid $500 by Purchaser on the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;Closing Date.
Appears in 1 contract
Samples: Stock Purchase Agreement (Allmarine Consultants CORP)
Escrow. a. Escrow Agent The certificates for the Restricted Shares shall hold and disburse the Deposit be deposited in accordance escrow with the following provisions:
i. If the Closing occurs, then the Escrow Agent shall deliver the Deposit to Seller.
ii. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment Secretary of the Deposit, Escrow Agent shall give written notice Company to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit held in accordance with the provisions of this Agreementparagraph. Escrow Agent Each deposited certificate shall be accompanied by a duly executed Assignment Separate from Certificate in the form attached hereto as Exhibit A. The deposited certificates shall remain in escrow until such time or times as the certificates are to be released or otherwise surrendered for cancellation as discussed below. Upon delivery of the certificates to the Company, you shall be issued an instrument of deposit acknowledging the number of Shares delivered in escrow to the Secretary of the Company. All regular cash dividends on the Shares (or other securities at the time held in escrow) shall be paid directly to you and shall not be liable for held in escrow. However, in the event of any action taken dividend, split, recapitalization or omitted by Escrow Agent other change affecting the Company's outstanding Shares as a class effected without receipt of consideration or in good faith and believed by Escrow Agent to be authorized the event of a split, a dividend or within its rights a similar change in the Shares, any new, substituted or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence additional securities or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit other property which is by reason of such transaction distributed with respect to the insolvency or failure Shares shall be immediately delivered to the Secretary of the institution of depository with whom Company to be held in escrow hereunder, but only to the extent the Shares are at the time subject to the escrow account is maintainedrequirements hereof. Upon As your interest in the disbursement Shares vests, as described above, the certificates for such vested Shares shall be released from escrow and delivered to you, at your request, within 30 days of their vesting. WITHHOLDING TAXES You agree, as a condition of this grant, that you will make acceptable arrangements to pay any withholding or other taxes that may be due as a result of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability vesting of Shares acquired under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vigrant. In the event that a dispute shall arise in connection with this Agreementthe Company determines that any federal, state, local or as foreign tax or withholding payment is required relating to the rights vesting of the parties in and to, or the disposition ofShares arising from this grant, the Deposit, Escrow Agent Company shall have the right to: (i) hold and retain all to require such payments from you, or withhold such amounts from other payments due to you from the Company or any part Affiliate. SECTION 83(B) Under Section 83 of the Deposit until Internal Revenue Code of 1986, ELECTION as amended (the "Code"), the difference between the purchase price paid for the Shares and their fair market value on the date any forfeiture restrictions applicable to such dispute Shares lapse will be reportable as ordinary income at that time. For this purpose, "forfeiture restrictions" include the forfeiture of unvested Shares that is settled or finally determined described above. You may elect to be taxed at the time the Shares are acquired, rather than when such Shares cease to be subject to such forfeiture restrictions, by litigation, arbitration, or otherwise; filing an election under Code Section 83(b) with the Internal Revenue Service within thirty (ii30) deposit days after the Deposit Grant Date. You will have to make a tax payment to the extent the Purchase Price is less than the fair market value of the Shares on the Grant Date. No tax payment will have to be made to the extent the Purchase Price is at least equal to the fair market value of the shares on the Grant Date. The form for making this election is attached as Exhibit B hereto. Failure to make this filing within the thirty (30) day period will result in an appropriate court the recognition of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;ordinary income by you (in the event the fair market value of the shares as of the vesting date exceeds the purchase price) as the forfeiture restrictions lapse.
Appears in 1 contract
Samples: Restricted Share Agreement (Blackwater Midstream Corp.)
Escrow. a. The Deposit and any other sums which the parties agree shall be held in escrow together with all interest earned thereon (collectively, the "Escrow Agent Deposits"), shall hold be held by the Escrow Agent, in trust, and disburse the Deposit disposed of only in accordance with the following provisions:
i. (a) The Escrow Agent shall deposit the Escrow Deposits with a bank or trust company mutually acceptable to Seller and Buyer in a separate special money market rate interest-bearing commercial bank account in the State of Illinois (or otherwise invested in government insured instruments as may be agreed in writing by Seller, Buyer and the Escrow Agent), shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others and shall promptly advise Buyer and Seller of the number of such account.
(b) If the Closing under this Agreement occurs, then the Escrow Agent shall deliver the Deposit to SellerEscrow Deposits to, or upon the instructions of, Buyer and Seller on the Closing Date by wire transfer.
ii(c) If for any reason the Closing does not occur, the Escrow Agent shall deliver the Escrow Deposits to Seller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions of this SECTION 12.1(c). If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent for payment of the DepositEscrow Deposits, the Escrow Agent shall give written notice to the other party of such demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN 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 TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentperiod, the Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement signed by Seller and Buyer or a final judgment in of a court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. (d) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties Escrow Agent shall not be deemed to be the agent of either of the Escrow Agent hereunder are purely ministerial in nature parties, and shall be expressly limited to that the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable to either of the parties for any action or omission on its part taken or omitted made in good faith, and not in disregard of this Agreement, but shall be liable for its negligent acts and for any loss, cost or expense incurred by Seller or Buyer resulting from the Escrow Agent's mistake of law respecting the Escrow Agent's scope or nature of its duties. Seller and Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including reasonable attorneys' fees, incurred in connection with the performance of the Escrow Agent's duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in good faith bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.
(e) The party receiving the Escrow Deposits and believed by the interest earned thereon shall pay any income taxes on such interest. The parties hereto represent and warrant to the Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. that their respective taxpayer identification numbers are: Seller 00-0000000; and Buyer 00-0000000.
(f) The Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Agent has received and shall not have any liability or obligation for loss hold the Escrow Deposits in escrow, and shall disburse the Escrow Deposits, pursuant to the provisions of all or any portion of this ARTICLE 12.
(g) The total escrow fee charged by the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved the sum of Seven Hundred Dollars ($ 700.00) paid solely by Buyer, but Escrow Agent acknowledges that its duties shall be to both Buyer and released from any liability Seller equally under the terms of this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Meridian Industrial Trust Inc)
Escrow. a. Immediately upon execution of this Agreement by Purchaser and Seller, an original of this Agreement executed by Seller and Purchaser shall be deposited with Escrow Agent Holder, and the Escrow will be opened as of the date that this Agreement is so deposited with Escrow Holder (the "OPENING OF ESCROW"). This Agreement, together with such further instructions as the parties shall hold provide to Escrow Holder by written agreement (including, without limitation, Escrow Holder's general provisions in the modified form set forth in 37 39 Exhibit J attached hereto), shall constitute the Escrow instructions. If any requirements relating to the duties or obligations of Escrow Holder hereunder are not acceptable to Escrow Holder, or if Escrow Holder requires additional instructions, Purchaser and disburse Seller agree to make such deletions, substitutions and additions hereto and to execute any reasonably separate or additional Escrow instructions (including the Deposit general instructions in the modified form attached hereto as Exhibit J) required by Escrow Holder as counsel for Purchaser and Seller shall mutually approve, which additional instructions shall not substantially alter the terms of this Agreement unless otherwise expressly agreed to by Seller and Purchaser. In the event of any conflict or inconsistency between the terms of any such Escrow instructions and the terms of this Agreement, the terms and provisions of this Agreement shall govern and prevail, unless the terms and provisions of the additional instructions clearly state that they amend and supersede the terms of this Agreement. Purchaser and Seller also authorize their respective attorneys to execute and deliver to Escrow Holder any supplementary instructions as may be necessary or convenient to close the transaction contemplated hereby; provided, such supplementary instructions shall be consistent with and merely supplement this Agreement and shall not in any way modify, amend or supersede this Agreement. Escrow Holder shall execute this Agreement below in order to evidence Escrow Holder's receipt of the same and Escrow Holder's agreement to act as "escrow holder" in accordance with the following provisions:
i. If the Closing occurs, then the terms and provisions hereof. DEPOSITS INTO ESCROW. Seller shall make Seller's deposits into Escrow Agent in accordance with Section 11. Purchaser shall deliver the Deposit to Seller.
iimake Purchaser's deposits into Escrow in accordance with Section 12. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent Holder is hereby authorized to make such payment. If close the Escrow Agent does receive such written objection within such TEN only if and when: (10i) day period or if for any other reason Escrow Agent in good faith shall elect not Holder has received all items to make such payment, Escrow Agent shall continue to hold such amount until otherwise directed be delivered by written instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree pursuant to Section 11 and acknowledge that Section 12, respectively, (ii) Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon Holder is prepared to immediately disburse the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties proceeds of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited Purchase Price due to the safekeeping and disposition Seller by federal wire transfer of the Deposit immediately available funds in accordance with the provisions of this Agreementseparate disbursement instructions from Seller; and (iii) the Title Company has irrevocably committed to issue the Title Policy to Purchaser upon the Closing. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintainedESCROW HOLDER'S CLOSING DISBURSEMENTS. Upon the disbursement of the Deposit in accordance with this AgreementClosing, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
viHolder shall: DELIVERIES TO PURCHASER. In the event that a dispute shall arise in connection with this Agreement, or as Deliver to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right toPurchaser: (i) hold the Grant Deed by causing the Grant Deed to be recorded in the Official Records and retain all or any part immediately upon recording delivering to Purchaser and to Seller a conformed copy of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwiseGrant Deed as recorded; (ii) deposit the Deposit Bill xx Sale; (iii) the Certificate of Non-Foreign Status and California Form 590; (iv) the General Assignment executed in an appropriate court counterpart by Seller; and (v) the Assignment of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;38 40 Leases executed by Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Carramerica Realty Corp)
Escrow. a. 2.15.1. In connection with the Closing, Buyer, the Shareholders’ Representative and the Escrow Agent shall hold have executed and disburse delivered an escrow agreement, in a form mutually agreed upon between such parties (the Deposit “Escrow Agreement”), under which SunTrust Bank shall act as escrow agent (the “Escrow Agent”) with respect to (a) an escrow fund into which the Adjustment Escrow Amount is deposited (the “Adjustment Escrow Fund”) for the purpose of securing payment of any adjustments to the Working Capital in accordance with Section 2.13.2 and an escrow fund into which the Indemnification Escrow Amount is deposited (the “Indemnification Escrow Fund”) for the purpose of securing the payment of the Company Holders’ indemnification obligations pursuant to ARTICLE 8. The Parties will, to the extent consistent with Applicable Law, treat the Adjustment Escrow Fund and the Indemnification Escrow Fund and any earnings thereon as owned by Buyer for Tax purposes.
2.15.2. Following the determination of the Final Closing Working Capital Adjustment Amount and payment of any amounts due to Buyer pursuant to Section 2.13.2 in accordance with the following provisions:
i. If the Closing occursEscrow Agreement, then the Escrow Agent shall deliver make available to (i) the Deposit Surviving Corporation with respect to Selleramounts (A) to be paid through payroll and (B) which represent Escrow Release Tax Costs or (ii) the Paying Agent for distribution to the Company Holders of the then-remaining Adjustment Escrow Amount, and each of the Surviving Corporation and the Paying Agent, as applicable, shall pay each Company Holder its Upfront Payment Pro Rata Percentage of the then-remaining Adjustment Escrow Amount (after appropriate reduction for any applicable Escrow Release Tax Costs).
ii2.15.3. If for any reason Upon the Closing does not occur and either party makes a written demand upon Escrow Agent for payment termination of the DepositIndemnification Escrow Fund on the Escrow Termination Date in accordance with the Escrow Agreement, the Escrow Agent shall give written notice make available to (i) the Surviving Corporation with respect to amounts (A) to be paid through payroll and (B) which represent Escrow Release Tax Costs or (ii) the Paying Agent for distribution to the other party Company Holders of such demand. If the then-remaining Indemnification Escrow Agent does not receive a written objection from Amount, and each of the other party Surviving Corporation and the Paying Agent, as applicable, shall disburse to the proposed payment within TEN Company Holders the then-remaining Indemnification Escrow Amount released in accordance with Section 8.11 (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period 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 instructions from the parties to this Agreement or a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereonappropriate reduction, if any, with pursuant to Section 8.4.4 or for any applicable Escrow Release Tax Costs).
2.15.4. The execution of a Written Consent or the clerk adoption of this Agreement and the approval of the Court transactions contemplated hereby, including the Merger, by the Company Shareholders shall constitute approval of Orange Countythe Escrow Agreement and all arrangements related thereto, Floridaincluding the depositing of the Adjustment Escrow Amount into the Adjustment Escrow Fund and the Indemnification Escrow Amount into the Indemnification Escrow Fund. Any interest accruing with respect to the Adjustment Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Fund or the Indemnification Escrow Agent Fund shall be relieved deemed part of the Adjustment Escrow Amount or the Indemnification Escrow Amount, respectively, for all indemnification and discharged escrow disbursement purposes hereunder. The right of all further obligations any Company Holder to receive its portion of the Adjustment Escrow Fund and responsibilities hereunder.
the Indemnification Escrow Fund, if any, (i) is an integral part of the Merger Consideration and Option Merger Consideration, as applicable, provided for in this Agreement, (ii) does not give the Company Holders dividend rights, voting rights, liquidation rights, preemptive rights or other rights of holders of capital stock of the Company, (iii. Escrow Agent has signed this Agreement ) shall not be evidenced by a certificate or other instrument, (iv) shall not be assignable or otherwise transferable by such Company Holder, except in the manner as provided for Contingent Payments set forth in Section 2.14.11, and (v) does not represent any right other than the sole purpose of agreeing right to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those receive the consideration set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
ivSection 2.15. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties Any attempted transfer of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited right to the safekeeping and disposition of the Deposit in accordance with the provisions of this Agreement. Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit Adjustment Escrow Amount or the Indemnification Escrow Amount by reason of any holder thereof (other than as specifically permitted by the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent immediately preceding sentence) shall be relieved null and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful defaultvoid.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Escrow. a. Within three (3) business days after the execution of this Contract of Sale, Purchaser will deliver to Escrow Agent a wire transfer in the amount of $300,000.00 as the downpayment (the "Downpayment"). Escrow Agent shall hold and disburse deposit the Deposit in accordance with the following provisions:
i. If the Closing occurs, then the Downpayment into an interest-bearing account(s) maintained at a federally insured financial institution(s). Escrow Agent shall deliver the Deposit to Seller.
iiDownpayment in accordance with this Contract of Sale, or a joint instruction signed by Seller and Purchaser, or separate instructions of like tenor signed by Seller and Purchaser, or a final judgment of a court of competent jurisdiction. If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of hereby is authorized and directed to deliver the DepositDownpayment to Seller if, Escrow Agent shall give written notice to the other party of such demandas and when title closes. If Escrow Agent does not shall receive a written request by one party for the release of the Downpayment other than as specifically authorized above, Escrow Agent will give a copy thereof to the other party. If Escrow Agent shall not receive an objection from the other party within five (5) business days, then Escrow Agent shall so release the Downpayment. Provided, however, in the event that Purchaser requests release of the Downpayment as a result of Purchaser terminating this Contract prior to the proposed payment within TEN (10) days after end of the giving of such noticeDue Diligence Period, Escrow Agent no consent or approval from the Seller is hereby authorized necessary and the Downpayment shall be immediately returned to make such paymentPurchaser. If Escrow Agent does receive such written objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentreceives an objection, then Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement or a final judgment Downpayment in courtaccordance with the terms hereof. However, Escrow Agent shall have the right at any time to may deposit the escrowed proceeds Downpayment with a court of competent jurisdiction, and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written upon notice of such deposit to Seller and Purchaser. Upon Purchaser of such deposit, Escrow Agent shall be relieved and discharged of all have no further obligations and responsibilities responsibility or liability hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to may act as upon any instruction or other writing believed by Escrow Agent in accordance with good faith to be genuine and to be signed or presented by the proper persons. Except as otherwise noted herein, any interest or income thereon shall be paid to the party entitled to receive the Downpayment; provided that if Seller shall receive the interest at Closing then such interest shall serve as a credit against the purchase price. If Purchase fails to make the deposit of the Downpayment as required hereunder, this Article. Escrow Agent Contract shall terminate and neither party shall have no duties or responsibilities except those set forth in this Agreement and any further obligations hereunder to the other. Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as merely a stakeholder at their request stakeholder, and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial shall not be liable for any act or omission unless taken or suffered in nature and shall be expressly limited to the safekeeping and disposition of the Deposit bad faith, in accordance with the provisions willful disregard of this AgreementContract of Sale or involving gross negligence. Escrow Agent shall not be liable for the failure of the institution(s) in which the Downpayment has been deposited or for establishing accounts in excess of applicable guaranty limits. Seller and Purchaser agree to indemnify and hold Escrow Agent harmless from and against any reasonable costs, claims or expenses incurred in connection with the performance of the Escrow Agent's duties hereunder, unless such costs, claims or expenses were occasioned by Escrow Agent's bad faith or its willful disregard of this Contract of Sale. Escrow Agent shall not be bound by any agreement between Seller and Purchaser, whether or not Escrow Agent has knowledge thereof, and Escrow Agent's only duties and responsibilities shall be to hold, and to dispose of, the Downpayment and interest earned thereon in accordance with this Contract of Sale. Escrow Agent may consult with counsel, and any opinion of counsel shall be full and complete authorization and protection in respect to any action taken or omitted by Escrow Agent hereunder in good faith and believed by Escrow Agent in reliance upon such opinion. All instructions or notices given to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved in writing and released from any liability under delivered in accordance with the requirements of this AgreementContract of Sale. For purposes of this paragraph, such instructions and notices shall be deemed delivered on the date of delivery, if by hand, or on the date of mailing if mailed, except in connection with Escrow Agent's gross negligence that no instruction or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as notice to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which be deemed effectively delivered to Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;until actual receipt thereof by Escrow Agent.
Appears in 1 contract
Samples: Contract of Sale (BRT Realty Trust)
Escrow. a. A. The Deposit shall be held in escrow by the Escrow Agent shall hold deposited in an interest-bearing account, with interest to be paid to Buyer, and disburse the Deposit disbursed in accordance with the following provisionsterms of this Agreement. The parties acknowledge that the Deposit deposited with the Escrow Agent, may be ultimately disbursed by the Escrow Agent:
i. If (i) to Buyer, in the Closing occursevent Buyer terminates this Agreement pursuant to any right of termination contained herein, then or in the event of a default hereunder by Seller; (ii) to Seller, in the event of a default by Buyer under this Agreement or if specifically required hereunder; or (iii) as a credit toward the Purchase Price for the Property, in the event the transaction contemplated herein is consummated. In the event the Buyer or Seller makes a demand for disbursement of the Deposit and interest under the conditions described in (i) or (ii) above, the party making such demand shall give written notice thereof to the Escrow Agent and the other party in the manner specified herein. Escrow Agent shall deliver disburse the Deposit and interest thereon to Seller.
iithe party making such demand unless contrary instructions are received from the other party within ten (10) business days of its receipt of the original notice. If for any reason In the Closing does not occur and either party makes a written demand upon event such contrary instructions are received, Escrow Agent for payment may, at its option, continue to hold the Deposit and interest thereon until such time as the Buyer and Seller resolve their dispute and issue joint written instructions relative to the disbursement of the Deposit, or deposit said Deposit and interest thereon with a court of competent jurisdiction and thereupon be relieved from all further obligations with respect to such Deposit. Further, Buyer and Seller agree that if the Escrow Agent shall give written notice exercises its option to interplead the Deposit into court, any and all costs to the other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within TEN (10) days after the giving of such notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent does receive such written objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith so doing shall elect not be assessed against the non-prevailing party in such litigation. In the event the Buyer and Seller desire the Deposit be disbursed pursuant to make such payment(iii) above, Buyer and Seller shall issue joint written instructions to Escrow Agent shall continue specifying the manner in which the funds are to hold such amount until otherwise directed be transferred, and any other information reasonably requested by written instructions from Escrow Agent.
B. The parties acknowledge and agree that the parties to functions of Escrow Agent under this Agreement or are as a final judgment in court. However, Escrow Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Articlestakeholder only. Escrow Agent shall have no duties liability to either party for its actions or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that inaction hereunder (regardless of whether such action or inaction constitutes negligence) unless such action was taken in, or such inaction resulted from, bad faith. In no event, however, shall Escrow Agent have any liability hereunder for any amount in excess of the Deposit. In no event shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited responsible for obtaining any given rate of interest with respect to the safekeeping and disposition of the Deposit in accordance with the provisions of this AgreementDeposit. Escrow Agent shall not be liable for bound by any action taken modification of this Agreement or omitted of any agreement incorporated by reference herein, unless there shall have been delivered to Escrow Agent in good faith a written modification signed by both Seller and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this AgreementBuyer. No such modification shall, except for any damage caused by without the consent of Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have , modify any liability or obligation for loss of all or any portion of the Deposit by reason provisions of this Agreement relating to the insolvency rights, obligations or failure duties of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement, except in connection with Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (i) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
Escrow. a. If there is a dispute between Seller and Purchaser regarding whether all or any portion of the Deposit shall be returned to Purchaser or delivered to Seller, Escrow Agent shall hold and disburse have no obligation to either Seller or Purchaser with respect to the Deposit in accordance with except to interplead the following provisions:
i. If the Closing occurs, then the Deposit into an appropriate court of competent jurisdiction. Escrow Agent shall deliver may act upon any instrument or other writing believed by Escrow Agent in good faith to be genuine and to be signed and presented by the Deposit to Sellerproper person.
ii. (i) If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent for payment delivery of the DepositDeposit prior to Settlement, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does a notice of objection to the proposed payment is not receive a written objection received from the other party to the proposed payment within TEN ten (10) business days after the giving of such noticenotice by Escrow Agent, Escrow Agent is hereby authorized to make such paymentdeliver the Deposit to the party who made the demand. If Escrow Agent does receive such written receives a notice of objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentsaid period, then Escrow Agent shall continue to hold such amount until otherwise directed by written instructions the Deposit and thereafter pay it to the party entitled when Escrow Agent receives: (i) a notice from the objecting party withdrawing the objection, or (ii) a notice signed by both parties to this Agreement directing disposition of the Deposit, or (iii) a final judgment in courtor order from a court of competent jurisdiction. HoweverExcept for its bad faith, gross negligence or willful misconduct, Escrow Agent shall have the right at not be liable for any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk loss or impairment of the Court of Orange CountyDeposit;
(ii) Except for its bad faith, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such depositgross negligence or willful misconduct, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.Agent;
v. The parties acknowledge that (iii) Escrow Agent is acting solely as a stakeholder at their request and for their convenienceshall not be bound in any way by any other contract or understanding between the parties hereto, that the duties of the whether or not Escrow Agent hereunder are purely ministerial has knowledge thereof or consents thereto unless such consent is given in nature writing;
(iv) Escrow Agent’s sole duties and responsibilities shall be expressly limited to the safekeeping hold and disposition of disburse the Deposit in accordance with the provisions of this Agreement. ; provided, however, that Escrow Agent shall have no responsibility for the clearing or collection of the check (if any) representing the Deposit;
(v) Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by the bad faith, gross negligence of willful misconduct of Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. ;
(vi) Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement;
(vii) Escrow Agent may resign at any time upon at least ten (10) days prior written notice to the parties hereto. If, except prior to the effective date of such resignation, the parties hereto shall have approved, in writing, a successor escrow agent, then upon the resignation of Escrow Agent, Escrow Agent shall deliver the Deposit to such successor escrow agent. From and after such resignation and the delivery of the Deposit to such successor escrow agent, Escrow Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement, all of which duties, responsibilities and obligations shall be performed by the appointed successor escrow agent. If, for any reason, the parties hereto shall not approve a successor escrow agent within such period, Escrow Agent may bring any appropriate action or proceeding for leave to deposit the Deposit with a court of competent jurisdiction pending the approval of a successor escrow agent, and upon such deposit Escrow Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement;
(viii) Seller and Purchaser hereby agree to, jointly and severally, indemnify, defend and hold Escrow Agent harmless from and against any liabilities, damages, losses, costs or expenses incurred by, or claims or charges made against, Escrow Agent (including reasonable counsel fees and court costs) by reason of Escrow Agent’s acting or failing to act in connection with any of the matters contemplated by this Agreement or in carrying out the terms of this Agreement, except as a result of Escrow Agent's ’s gross negligence or willful default.misconduct; and
vi. (ix) In the event that a dispute shall arise in connection with this Agreement, or as to the rights of any of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (iw) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitrationarbitration or otherwise, or otherwise; (iix) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;, except to the extent any claims against Escrow Agent arise from the bad faith, gross negligence or willful misconduct of Escrow Agent, or a breach of the Escrow Agent’s obligations under this Agreement, or (y) institute an action in interpleader or other similar action permitted by stakeholders in the State of Connecticut, or (z) interplead any of the parties in any action or proceeding which may be brought to determine the rights of the parties to all or any part of the Deposit. The costs of any of the actions taken by Escrow Agent pursuant to clauses (w), (x), (y) or (z) of the immediately preceding sentence, including, without limitation, reasonable legal fees, shall be borne by whichever of Seller or Purchaser is the losing party (i.e., determined not to be the party entitled to the Deposit). In the event neither party is determined to be the losing party, the costs of any of the actions taken by Escrow Agent shall be borne by the Purchaser and Seller equally.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Escrow. a. If there is a dispute between Seller and Purchaser regarding whether all or any portion of the Deposit shall be returned to Purchaser or delivered to Seller, Escrow Agent shall hold and disburse have no obligation to either Seller or Purchaser with respect to the Deposit in accordance with except to interplead the following provisions:
i. If the Closing occurs, then the Deposit into an appropriate court of competent jurisdiction. Escrow Agent shall deliver may act upon any instrument or other writing believed by Escrow Agent in good faith to be genuine and to be signed and presented by the Deposit to Sellerproper person.
ii. (i) If for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent for payment delivery of the DepositDeposit prior to Settlement, Escrow Agent shall give written notice to the other party of such demand. If Escrow Agent does a notice of objection to the proposed payment is not receive a written objection received from the other party to the proposed payment within TEN ten (10) business days after the giving of such noticenotice by Escrow Agent, Escrow Agent is hereby authorized to make such paymentdeliver the Deposit to the party who made the demand. If Escrow Agent does receive such written receives a notice of objection within such TEN (10) day period or if for any other reason Escrow Agent in good faith shall elect not to make such paymentsaid period, then Escrow Agent shall continue to hold such amount until otherwise directed by written instructions the Deposit and thereafter pay it to the party entitled when Escrow Agent receives: (i) a notice from the objecting party withdrawing the objection, or (ii) a notice signed by both parties to this Agreement directing disposition of the Deposit, or (iii) a final judgment in courtor order from a court of competent jurisdiction. HoweverExcept for its bad faith, gross negligence or willful misconduct, Escrow Agent shall have the right at not be liable for any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk loss or impairment of the Court of Orange CountyDeposit;
(ii) Except for its bad faith, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such depositgross negligence or willful misconduct, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iii. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.Agent;
v. The parties acknowledge that (iii) Escrow Agent is acting solely as a stakeholder at their request and for their convenienceshall not be bound in any way by any other contract or understanding between the parties hereto, that the duties of the whether or not Escrow Agent hereunder are purely ministerial has knowledge thereof or consents thereto unless such consent is given in nature writing;
(iv) Escrow Agent’s sole duties and responsibilities shall be expressly limited to the safekeeping hold and disposition of disburse the Deposit in accordance with the provisions of this Agreement. ; provided, however, that Escrow Agent shall have no responsibility for the clearing or collection of the check (if any) representing the Deposit;
(v) Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within its rights or powers conferred upon it by this Agreement, except for any damage caused by the bad faith, gross negligence of willful misconduct or Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. ;
(vi) Upon the disbursement of the Deposit in accordance with this Agreement, Escrow Agent shall be relieved and released from any liability under this Agreement;
(vii) Escrow Agent may resign at any time upon at least ten (10) days prior written notice to the parties hereto. If, except prior to the effective date of such resignation, the parties hereto shall have approved, in writing, a successor escrow agent, then upon the resignation of Escrow Agent, Escrow Agent shall deliver the Deposit to such successor escrow agent. From and after such resignation and the delivery of the Deposit to such successor escrow agent, Escrow Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement, all of which duties, responsibilities and obligations shall be performed by the appointed successor escrow agent. If, for any reason, the parties hereto shall not approve a successor escrow agent within such period, Escrow Agent may bring any appropriate action or proceeding for leave to deposit the Deposit with a court of competent jurisdiction pending the approval of a successor escrow agent, and upon such deposit Escrow Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement;
(viii) Seller and Purchaser hereby agree to, jointly and severally, indemnify, defend and hold Escrow Agent harmless from and against any liabilities, damages, losses, costs or expenses incurred by, or claims or charges made against, Escrow Agent (including reasonable counsel fees and court costs) by reason of Escrow Agent’s acting or failing to act in connection with any of the matters contemplated by this Agreement or in carrying out the terms of this Agreement, except as a result of Escrow Agent's ’s gross negligence or willful default.misconduct; and
vi. (ix) In the event that a dispute shall arise in connection with this Agreement, or as to the rights of any of the parties in and to, or the disposition of, the Deposit, Escrow Agent shall have the right to: (iw) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitrationarbitration or otherwise, or otherwise; (iix) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;, except to the extent any claims against Escrow Agent arise from the bad faith, gross negligence or willful misconduct of Escrow Agent, or a breach of the Escrow Agent’s obligations under this Agreement, or (y) institute an action in interpleader or other similar action permitted by stakeholders in the Commonwealth of Virginia, or (z) interplead any of the parties in any action or proceeding which may be brought to determine the rights of the parties to all or any part of the Deposit. The costs of any of the actions taken by Escrow Agent pursuant to clauses (w), (x), (y) or (z) of the immediately preceding sentence, including, without limitation, reasonable legal fees, shall be borne by whichever of Seller or Purchaser is the losing party (i.e., determined not to be the party entitled to the Deposit). In the event neither party is determined to be the losing party, the costs of any of the actions taken by Escrow Agent shall be borne by the Purchaser and Seller equally.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Escrow. a. A. Escrow Agent agrees to hold all of the Escrowed Property in escrow subject to the terms and conditions contained in this Escrow Agreement. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. Escrow Agent agrees to hold the Escrowed Property and to release same only in accordance with the terms and conditions set forth in this Escrow Agreement. The provisions of this Escrow Agreement shall control in the event of any conflict between the provisions hereof and the provisions of the Credit Agreement or the Merger Agreement, if any.
B. Escrow Agent shall not be deemed to have knowledge of any matter or thing unless and until Escrow Agent has actually received written notice of such matter or thing and Escrow Agent shall not be charged with any constructive notice whatsoever. The Escrow Agent may act in reliance upon any writing or instrument or signature which Escrow Agent, in good faith, believes to be genuine, may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and may assume that any person purporting to give any writing, notice, advice or instructions in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner, and execution, or validity of any instrument deposited in this escrow or given to Escrow Agent under this Escrow Agreement, nor as to the identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the safekeeping of the Escrowed Property, and for the disposition of the same in accordance with this Escrow Agreement.
C. In the event the Escrowed Property consists in whole or in part of stocks, bonds or certificates of deposit (or any other property which may fluctuate in value) Escrow Agent shall hold and disburse in escrow, pursuant to this Escrow Agreement, any proceeds of the Deposit in accordance with the following provisions:
i. If the Closing occurs, then the Escrowed Property actually delivered to Escrow Agent and realized as a result of splits, calls, redemptions or otherwise, but shall deliver not be obligated to ascertain the Deposit existence of (or initiate recovery of) such proceeds or to Seller.
ii. If for become or remain informed with respect to the possibility or probability of such proceeds being realized at any reason time in the Closing does not occur future, or to inform the Principals or any third party with respect to the nature and either party makes a extent of any proceeds realized, except upon the written demand upon Escrow Agent for payment request of such party, or to monitor current market values of the DepositEscrowed Property. Further, Escrow Agent shall give written notice not be obligated to proceed with any action or inaction based on information with respect to market values of the other party of such demand. If Escrowed Property which Escrow Agent does not receive a written objection from may in any manner learn, nor shall Escrow Agent be obligated to inform the other Principals or any third party with respect to market values of any one or more of the proposed payment within TEN (10) days after the giving of such noticeEscrowed Property at any time, Escrow Agent is hereby authorized having no duties with respect to make such paymentinvestment management or information, the Principals understanding and intending that Escrow Agent’s responsibilities are purely ministerial in nature. Any reduction in the market value or other value of the Escrowed Property while deposited with Escrow Agent shall be at the sole risk of the Principals. If Escrow Agent does receive such written objection within such TEN (10) day period all or if for any portion of the Escrowed Property is in the form of a check or in any other reason Escrow Agent in form other than good faith shall elect not to make such paymentand cleared funds, Escrow Agent shall continue deposit same as required but shall not be liable for the nonpayment thereof, nor responsible to hold such amount until otherwise directed by written enforce collection thereof.
D. In the event instructions from the parties to this Agreement Principals, or a final judgment in court. Howeverany other party, would require Escrow Agent shall have the right at to expend any time monies or to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Court of Orange County, Florida. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such depositincur any cost, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.
iiientitled to refrain from taking any action until it receives payment for such costs. Escrow Agent has signed this Agreement for the sole purpose of agreeing to act as Escrow Agent in accordance with this Article. Escrow Agent shall have no duties or responsibilities except those set forth in this Agreement and Seller and Purchaser agree and acknowledge that Escrow Agent shall act hereunder as a depository only.
iv. Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which It is given to Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
v. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, agreed that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping of the Escrowed Property and for the disposition of same in accordance with this Escrow Agreement. The Principals, jointly and severally, hereby indemnify Escrow Agent, and hold it forever harmless from and against, any and all claims, liabilities, obligations, judgments, damages, costs, penalties, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees or charges of any character or nature (collectively, the “Claims”), including, without limitation, all reasonable attorneys’ fees and the cost of defending or resisting any Claim throughout all appellate levels, administrative proceedings and bankruptcy proceedings, which it may incur or with which it may be threatened, directly or indirectly, arising from or in any way connected with this Escrow Agreement, or which may result from Escrow Agent’s disposition of the Deposit Escrowed Property, whether or not litigation is instituted, unless any such Claims arise as a result of Escrow Agent’s gross negligence or willful misconduct. Escrow Agent shall and is hereby vested with a lien on all Escrowed Property under the terms of this Escrow Agreement, for indemnification, attorneys’ fees, court costs and all other costs and expenses arising from any Claim, interpleader or otherwise, or other expenses, fees or charges of any character or nature, which may be incurred by Escrow Agent by reason of disputes arising between the Principals or any third party as to the correct interpretation of this Escrow Agreement, the release of the Escrowed Property hereunder, instructions given to Escrow Agent hereunder, or otherwise, with the right of Escrow Agent, regardless of the instruments aforesaid and without the necessity of instituting any proceeding or action, to hold any property hereunder until and unless said additional expenses, fees and charges shall be fully paid. Any fees and costs charged by the Escrow Agent for serving hereunder shall be paid by the Principals, jointly and severally.
E. The Escrow Agent may consult with counsel of its own choice (and the costs of such counsel shall be paid by the Parent), and Escrow Agent 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 provisions opinion of this Agreementsuch counsel. The Escrow Agent shall not be liable for any action taken mistakes of fact or omitted error of judgment, or for any actions or omissions of any kind, unless caused by its willful misconduct or gross negligence.
F. The Principals acknowledge and agree that nothing in this Escrow Agreement shall prohibit Escrow Agent from serving in good faith and believed by a similar capacity on behalf of others.
G. All rights of indemnity or reimbursement to which Escrow Agent is entitled to be authorized hereunder shall survive the termination of this Escrow Agreement or within its rights the disbursement of the Escrowed Property or powers conferred upon it by this Agreement, except for any damage caused by Escrow Agent's own gross negligence or willful default. Escrow Agent shall not have any liability or obligation for loss delivery of the Escrowed Property to a successor escrow agent in accordance with the terms hereof.
H. If all or any portion of the Deposit by reason Escrowed Property delivered to Escrow Agent is in the form of the insolvency a check or failure of the institution of depository with whom the escrow account is maintained. Upon the disbursement of the Deposit in accordance with this Agreementany other form other than cash or immediately available US funds, Escrow Agent shall deposit same as required but shall not be relieved and released from any liability under this Agreement, except in connection with liable for the nonpayment thereof nor responsible to enforce collection thereof. If such check or other instrument other than cash representing the Escrowed Property is returned to Escrow Agent's gross negligence or willful default.
vi. In the event that a dispute shall arise in connection with this Agreement, or as to the rights of the parties in and to, or the disposition of, the DepositAgent unpaid, Escrow Agent shall have notify the right to: (iapplicable Principal(s) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration, or otherwise; (ii) deposit the Deposit in an appropriate court of law, following which Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement;for further instructions.
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Samples: Escrow Agreement (Tca Global Credit Master Fund Lp.)