Escrow Holder Seller and Buyer covenant and agree that in performing any of its duties under this Agreement, Title Company shall not be liable for any loss, costs or damage which it may incur as a result of serving as Escrow Holder hereunder, except for any loss, costs or damage arising out of its willful default or gross negligence. Accordingly, Title Company shall not incur any liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of its counsel given with respect to any questions relating to its duties and responsibilities, or (ii) to any action taken or omitted to be taken in reliance upon any document, including any written notice of instruction provided for in this Agreement, not only as to its due execution and the validity and effectiveness of its provisions, but also to the truth and accuracy of any information contained therein, which Title Company shall in good faith believe to be genuine, to have been signed or presented by a proper person or persons and to conform with the provisions of this Agreement.
The Escrow Agent To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Escrow Agent Prior to entering into an escrow agreement, the Registry Operator must provide notice to ICANN as to the identity of the Escrow Agent, and provide ICANN with contact information and a copy of the relevant escrow agreement, and all amendments thereto. In addition, prior to entering into an escrow agreement, Registry Operator must obtain the consent of ICANN to (a) use the specified Escrow Agent, and (b) enter into the form of escrow agreement provided. ICANN must be expressly designated as a third-‐party beneficiary of the escrow agreement. ICANN reserves the right to withhold its consent to any Escrow Agent, escrow agreement, or any amendment thereto, all in its sole discretion.
Agreement to Sell and Purchase the Shares At the Closing (as defined in Section 3), the Company will sell to the Purchaser, and the Purchaser will buy from the Company, upon the terms and conditions hereinafter set forth, the number of Shares (at the purchase price) shown below:
Concerning the Escrow Agent 6.1. 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 Agreement against the Escrow Agent.
6.2. The Escrow Agent may act in reliance upon any writing or instrument or signature which it, 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, 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 such certificates, monies, instruments, or other document received by it as such escrow holder, and for the disposition of the same in accordance with the written instruments accepted by it in the escrow.
6.3. Pledgee and the Pledgor hereby agree, to defend and indemnify the Escrow Agent and hold it harmless from any and all claims, liabilities, losses, actions, suits, or proceedings at law or in equity, or any other expenses, fees, or charges of any character or nature which it may incur or with which it may be threatened by reason of its acting as Escrow Agent under this Agreement; and in connection therewith, to indemnify the Escrow Agent against any and all expenses, including attorneys' fees and costs of defending any action, suit, or proceeding or resisting any claim (and any costs incurred by the Escrow Agent pursuant to Sections 6.4 or 6.5 hereof). The Escrow Agent shall be vested with a lien on all property deposited hereunder, for indemnification of attorneys' fees and court costs regarding any suit, proceeding or otherwise, or any other expenses, fees, or charges of any character or nature, which may be incurred by the Escrow Agent by reason of disputes arising between the makers of this escrow as to the correct interpretation of this Agreement and instructions given to the Escrow Agent hereunder, or otherwise, with the right of the Escrow Agent, regardless of the instructions aforesaid, to hold said property 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 Pledgor.
6.4. If any of the parties shall be in disagreement about the interpretation of this Agreement, or about the rights and obligations, or the propriety of any action contemplated by the Escrow Agent hereunder, the Escrow Agent may, at its sole discretion deposit the Pledged Materials with the Clerk of the United States District Court of New Jersey, sitting in Newark, New Jersey, and, upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully cease and terminate. The Escrow Agent shall be indemnified by the Pledgor, the Company and Pledgee for all costs, including reasonable attorneys' fees in connection with the aforesaid proceeding, and shall be fully protected in suspending all or a part of its activities under this Agreement until a final decision or other settlement in the proceeding is received.
6.5. The Escrow Agent may consult with counsel of its own choice (and the costs of such counsel shall be paid by the Pledgor and Pledgee) and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The Escrow Agent shall not be liable for any mistakes of fact or error of judgment, or for any actions or omissions of any kind, unless caused by its willful misconduct or gross negligence.
6.6. The Escrow Agent may resign upon ten (10) days' written notice to the parties in this Agreement. If a successor Escrow Agent is not appointed within this ten (10) day period, the Escrow Agent may petition a court of competent jurisdiction to name a successor.
Escrow Closing Buyer and Seller acknowledge and understand that the closing of the sale may be handled by an escrow agent and that the listing broker is authorized to transfer the xxxxxxx money or any other funds received to the escrow agent. After the transfer, Broker shall have no further responsibility or liability to Buyer or Seller to account for the funds. Escrow agent’s charges shall be equally divided between Buyer and Seller.
Seller’s Obligations at Closing At Closing, Seller shall:
(a) deliver to Purchaser a duly executed Assignment and Assumption of Membership Interests (the “Assignment and Assumption of Membership Interests”) in the form attached hereto as Exhibit D, conveying the 100% of the Interests to Purchaser;
(b) deliver to Purchaser, not later than five Business Days before the Closing Date, updated Rent Rolls dated not later than 10 Business Days before the Closing Date and on the Closing Date, updated Rent Rolls dated as of the Closing Date;
(c) in the event that any representation or warranty of Seller set forth in Section 3.1 needs to be modified due to changes since the Effective Date, deliver to Purchaser a certificate (the “Seller Closing Certificate”), dated as of the Closing Date and duly executed by Seller, identifying any representation or warranty that is not, or no longer is, true and correct and explaining the state of facts giving rise to such change. In no event shall Seller be liable to Purchaser for, or be deemed to be in default hereunder by reason of, any breach of representation or warranty that results from any change that (i) occurs between the Effective Date and the Closing Date and (ii) is expressly permitted under the terms of this Agreement; provided, however, that the occurrence of a change that is not permitted hereunder shall constitute the non-fulfillment of the condition set forth in Section 4.4(b). If, despite changes or other matters described in the Seller Closing Certificate, the Closing occurs, Seller’s representations and warranties set forth in this Agreement shall be deemed to have been modified by all statements made in the Seller Closing Certificate;
(d) deliver to the Title Company such evidence as the Title Company may reasonably require as to the authority of the person or persons executing documents on behalf of Seller;
(e) deliver to the Title Company an owner’s affidavit duly executed by the Company, in customary form reasonably acceptable to the Title Company;
(f) deliver to Purchaser a certificate in the form attached hereto as Exhibit E duly executed by Seller and stating that Seller is not a “foreign person” as defined in the Federal Foreign Investment in Real Property Tax Act of 1980;
(g) terminate or cause the Company to terminate, effective on or before the Closing Date, all Brokerage Agreements and property management agreements, as well as any Contracts which Purchaser elects, on or prior to the Expiration of the Due Diligence Period, not to assume and deliver to Purchaser evidence of each such termination; provided, however, that if any termination fees or other penalties are incurred by the Company as a result of the termination of such Contracts, the amount of any such fees or penalties shall be credited to Seller at Closing or otherwise paid by Purchaser;
(h) deliver an executed counterpart to the Closing Statement;
(i) make available to Purchaser, to the extent not already provided, the Leases and Contracts, together with such leasing and property files and records located in the property manager’s office for the Property which relate to the continued operation, leasing and maintenance of the Property, but excluding any documents of a confidential nature;
(j) deliver to Purchaser possession and occupancy of the Property (including all keys, lock combinations, and pass keys), subject to the Permitted Exceptions, rights of Tenants and terms of the Contracts;
(k) deliver a schedule of Security Deposits currently held by Seller on behalf of the Tenants; and
(l) deliver such additional documents as shall be reasonably required to consummate the transaction contemplated by this Agreement.
Purchaser’s Obligations at Closing At Closing, Purchaser shall:
(a) pay to Seller, in immediately available federal funds transferred by wire pursuant to Section 1.3, the full amount of the Purchase Price, subject to prorations and adjustments as provided herein;
(b) deliver to Seller an executed counterpart to the Assignment and Assumption of Membership Interests;
(c) in the event that any representation or warranty of Purchaser set forth in Section 3.2 needs to be modified due to changes since the Effective Date, deliver to Seller a certificate (the “Purchaser Closing Certificate”), dated as of the Closing Date and duly executed by Purchaser, identifying any representation or warranty that is not, or no longer is, true and correct and explaining the state of facts giving rise to such change. In no event shall Purchaser be liable to Seller for, or be deemed to be in default hereunder by reason of, any breach of representation or warranty that results from any change that (i) occurs between the Effective Date and the Closing Date and (ii) is expressly permitted under the terms of this Agreement; provided, however, that the occurrence of a change that is not permitted hereunder shall constitute the non-fulfillment of the condition set forth in Section 4.3(c). If, despite changes or other matters described in the Purchaser Closing Certificate, the Closing occurs, Purchaser’s representations and warranties set forth in this Agreement shall be deemed to have been modified by all statements made in the Purchaser Closing Certificate;
(d) deliver to the Title Company such evidence as the Title Company may reasonably require as to the authority of the person or persons executing documents on behalf of Purchaser;
(e) deliver an executed counterpart to the Closing Statement; and
(f) deliver such additional documents as shall be reasonably required to consummate the transaction contemplated by this Agreement.
Seller’s Obligations at the Closing At the Closing, Seller will do, or cause to be done, the following:
Closing Escrow The Closing shall take place by means of a so called “New York style” escrow (the “Closing Escrow”), and, at or prior to the Closing, the Parties shall enter into a closing escrow agreement with the Escrow Agent with respect to the Closing Escrow in form and substance reasonably acceptable to Seller, Purchaser and the Escrow Agent (the “Closing Escrow Agreement”) pursuant to which (i) the Purchase Price to be paid by Purchaser pursuant to Section 3.3 shall be deposited with Escrow Agent, (ii) all of the documents required to be delivered by Seller and Purchaser at Closing pursuant to this Agreement shall be deposited with Escrow Agent, and (iii) at Closing, the Purchase Price (as adjusted pursuant to Section 3.1) and the Xxxxxxx Money shall be disbursed to Seller and the documents deposited into the Closing Escrow shall be delivered to Seller and Purchaser (as the case may be) pursuant to the Closing Escrow Agreement.
