Deposit in Escrow. Section 4.01 The Deposit paid on execution hereof is being deposited with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, attorneys for Seller, at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“Escrow Agent”), who shall hold the proceeds thereof in an ▇▇▇▇ Fund account in accordance with Section 497 of the Judiciary Law, conditioned as follows: (a) The parties acknowledge that ▇▇▇▇▇▇ Agent is acting solely as a stakeholder at their request and for their convenience, that Escrow Agent shall not be deemed to be the agent of either party and that Escrow Agent shall not be liable to either party for any act or omission on its part unless taken or suffered in bad faith or in willful disregard of this Agreement or involving gross negligence. Seller and Purchaser jointly and severally indemnify and hold Escrow Agent harmless from and against all costs, claims and expenses (including, but not limited to, reasonable attorneys’ fees as incurred) incurred in connection with the performance of Escrow Agents’ duties hereunder, except with respect to actions or omissions taken or suffered by Escrow Agent in bad faith or in willful disregard of this Agreement or involving gross negligence on the part of Escrow Agent. (b) Escrow Agent may act or refrain from action with respect to 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 fully protected in so acting or refraining from action upon the advice of such counsel. (c) Escrow Agent has acknowledged its agreement to the provisions of this Section by signing in the place indicated on the signature page of this Agreement. (d) Escrow Agent or any member of its firm shall be permitted to act as counsel for Seller in any dispute as to the disbursement of the Deposit or any other dispute between the parties whether or not Escrow Agent is in possession of the Deposit and continues to act as Escrow Agent. (e) Escrow Agent shall be released and held harmless by Purchaser and Seller from all liability or obligation in the event that the deposit made hereunder, or any part thereof, shall be lost by reason of the insolvency or failure of the banking depository with whom the Deposit has been placed. The parties hereto acknowledge that Escrow Agent shall deposit the Deposit with Signature Bank in Jericho, New York. (f) 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, TIME BEING OF THE ESSENCE, 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 of a court of competent jurisdiction. However, ▇▇▇▇▇▇ Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Supreme Court of the County of Suffolk, State of New York. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit Escrow Agent shall be released and discharged of and from all further obligations and responsibilities hereunder. (g) Notwithstanding anything contained in this Agreement to the contrary, in the event that Purchaser shall fail to commence an action within thirty (30) days after Escrow Agent receives written notice of objection from Purchaser, TIME BEING OF THE ESSENCE, then Escrow Agent shall have the absolute and unconditional right to deliver the Deposit to Seller, and thereafter Escrow Agent shall be released of all of its obligations and duties hereunder.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Deposit in Escrow. Section 4.01 The Deposit paid on execution hereof is being deposited with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLPAt Closing, attorneys for Sellerthere shall be delivered to the Escrow Agent pursuant to the Escrow Agreement, at ▇▇▇▇ ▇▇▇▇▇▇▇▇to be held and disbursed upon and subject to all of the terms and conditions set forth therein, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ cash in the amount of Three Million Five Hundred Thousand Dollars ($3,500,000) (the “Escrow AgentAmount”), who and as provided in Section 2.13, the Short Year Tax Refund and the Loss Carryback Refund shall hold also be delivered to the proceeds Escrow Agent pursuant to the Escrow Agreement, to be so held and disbursed (and the Escrow Amount shall thereafter include the Short Year Tax Refund and the Loss Carryback Refund). The sum of $3,500,000 shall be deducted under Section 2.6(b) from the Initial Merger Consideration due to the Stockholders upon Closing, excluding any consideration attributable to any Dissenting Shares in respect of which no payment is required to be made to the holder thereof at Closing. At the request of the Stockholder Representative upon or following the second anniversary of the Effective Date, the Purchaser and the Stockholder Representative shall direct the Escrow Agent to disburse the remainder of the Escrow Amount to the Stockholder Representative, except as follows: (a) there shall be disbursed to the Purchaser and other Purchaser Indemnified Parties from the Escrow Amount, prior to any disbursement to the Stockholder Representative, any and all amounts then due pursuant to Article 10 in respect of any Claim or demand of a Third Party or any Loss; and (b) with regard to any Claim or demand of a Third Party or any Loss which has not been finally resolved or otherwise liquidated in amount upon such anniversary, the amount claimed or demanded by a Third Party or, if no such claim or demand has been made, the estimated maximum amount of such Claim, Loss or demand, plus an ▇▇▇▇ Fund account additional amount equal to one and one-half times the estimated amount of the attorneys’ fees and other costs and expenses of handling the Claim, Loss or demand through final resolution, to the extent not already included in amounts to be set aside for the Claim, Loss or demand, shall continue to be held as the Escrow Amount upon and subject to the terms of the Escrow Agreement. At the request of the Stockholder Representative upon or following the final resolution of any Claim, Loss or demand in respect of which any amount has continued to be so held, the Purchaser and the Stockholder Representative shall direct the Escrow Agent to disburse to the Stockholder Representative for payment to the Stockholders in accordance with Section 497 2.15 the remaining amount so held, after disbursement to the Purchaser and other Purchaser Indemnified Parties of the Judiciary Law, conditioned as follows:
(a) The parties acknowledge that ▇▇▇▇▇▇ Agent is acting solely as a stakeholder at their request and for their convenience, that Escrow Agent shall not be deemed amounts due in respect thereof pursuant to be the agent of either party and that Escrow Agent shall not be liable to either party for any act or omission on its part unless taken or suffered in bad faith or in willful disregard of this Agreement or involving gross negligence. Seller and Purchaser jointly and severally indemnify and hold Escrow Agent harmless from and against all costs, claims and expenses (including, but not limited to, reasonable attorneys’ fees as incurred) incurred in connection with the performance of Escrow Agents’ duties hereunder, except with respect to actions or omissions taken or suffered by Escrow Agent in bad faith or in willful disregard of this Agreement or involving gross negligence on the part of Escrow Agent.
(b) Escrow Agent may act or refrain from action with respect to 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 fully protected in so acting or refraining from action upon the advice of such counsel.
(c) Escrow Agent has acknowledged its agreement to the provisions of this Section by signing in the place indicated on the signature page of this Agreement.
(d) , and subject to retention under the Escrow Agent or any member of its firm shall be permitted to act Agreement as counsel for Seller in any dispute as to the disbursement of the Deposit or any other dispute between the parties whether or not Escrow Agent is in possession of the Deposit and continues to act as Escrow Agent.
(e) Escrow Agent shall be released and held harmless by Purchaser and Seller from all liability or obligation in the event that the deposit made hereunder, or any part thereof, shall be lost by reason of the insolvency or failure of the banking depository with whom the Deposit has been placed. The parties hereto acknowledge that Escrow Agent shall deposit the Deposit with Signature Bank in Jericho, New York.
(f) 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, TIME BEING OF THE ESSENCE, 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 provided above for any other reason Escrow Agent in good faith shall elect not to make such paymentClaim, Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement Loss or a final judgment of a court of competent jurisdiction. However, ▇▇▇▇▇▇ Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Supreme Court of the County of Suffolk, State of New York. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit Escrow Agent shall be released and discharged of and from all further obligations and responsibilities hereunderdemand then remaining unresolved.
(g) Notwithstanding anything contained in this Agreement to the contrary, in the event that Purchaser shall fail to commence an action within thirty (30) days after Escrow Agent receives written notice of objection from Purchaser, TIME BEING OF THE ESSENCE, then Escrow Agent shall have the absolute and unconditional right to deliver the Deposit to Seller, and thereafter Escrow Agent shall be released of all of its obligations and duties hereunder.
Appears in 1 contract
Sources: Merger Agreement (Usi Holdings Corp)
Deposit in Escrow. Section 4.01 The (a) On (or within five business days after) the Signature Date, Buyer will deposit in escrow with the Escrow Agent under the Deposit paid Escrow Agreement the sum of Seven Million Two Hundred Thousand dollars ($7,200,000) (the "Deposit"). At the Closing, Buyer and Seller shall authorize and direct the Escrow Agent to pay the Deposit plus accrued interest to Seller on execution hereof is being deposited with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLPthe Closing Date, attorneys for Sellerwhich combined sum shall be credited against the Purchase Price. In the event that the Closing shall not occur prior to the Outside Date by reason of a material breach or default hereunder by Buyer, at ▇▇▇▇ ▇▇▇▇▇▇▇▇and provided that Seller shall have performed, ▇▇▇▇ ▇▇▇▇▇or shall stand ready, ▇▇▇ ▇▇▇▇willing, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“and able to perform, its obligations under this Agreement in all material respects, and shall not otherwise be in material breach of its obligations hereunder, the Escrow Agent”), who shall hold the proceeds thereof in an ▇▇▇▇ Fund account in accordance with Section 497 the terms of the Judiciary LawDeposit Escrow Agreement, conditioned shall pay the Deposit and all accrued interest to Seller, which Seller shall thereupon be entitled to receive, take possession of and make use of pending any final judgment obtained by Buyer or Seller (or any written agreement entered into by Buyer and Seller) with respect to the final disposition thereof, it being agreed that (i) such payment shall not constitute liquidated damages hereunder, unless Seller shall elect (in Seller's sole discretion) to accept such payment as follows:
(a) The parties acknowledge that ▇▇▇▇▇▇ Agent is acting solely as a stakeholder at their request liquidated damages by written notice to Buyer and for their convenience, that the Escrow Agent within fifteen (15) business days after Seller's receipt thereof, in the event of which election by Seller that payment shall not be deemed to be the agent constitute full liquidated damages hereunder and to terminate all of either party Buyer's obligations to Seller (and that Escrow Agent shall not be liable all of Seller's obligations to either party for any act or omission on its part unless taken or suffered in bad faith or in willful disregard of this Agreement or involving gross negligence. Seller and Purchaser jointly and severally indemnify and hold Escrow Agent harmless from and against all costs, claims and expenses (including, but not limited to, reasonable attorneys’ fees as incurredBuyer) incurred in connection with the performance of Escrow Agents’ duties hereunder, except with respect to actions or omissions taken or suffered by Escrow Agent in bad faith or in willful disregard of this Agreement or involving gross negligence on the part of Escrow Agent.
and (bii) Escrow Agent may act or refrain from action with respect to 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 fully protected in so acting or refraining from action upon the advice of such counsel.
(c) Escrow Agent has acknowledged its agreement to the provisions of this Section by signing in the place indicated on the signature page of this Agreement.
(d) Escrow Agent or any member of its firm shall be permitted to act as counsel for Seller in any dispute as to the disbursement of the Deposit or any other dispute between the parties whether or not Escrow Agent is in possession of the Deposit and continues to act as Escrow Agent.
(e) Escrow Agent shall be released and held harmless by Purchaser and Seller from all liability or obligation in the event that Seller shall not elect (as hereinbefore provided) to accept Seller's receipt of the deposit made hereunderDeposit as liquidated damages, or any part thereof, Seller shall be lost by reason entitled to (a) Buyer's specific performance of all of Buyer's obligations hereunder and (b) upon (and subject to) Buyer's specific performance hereof and the consummation of the insolvency or failure Closing in accordance with the terms and provisions of the banking depository with whom this Agreement, Seller shall apply the Deposit has been placed. The parties hereto acknowledge that Escrow Agent shall deposit the Deposit and all accrued interest thereon, less Seller's costs and expenses (including court costs, attorney fees and related expenses) incurred by Seller in connection with Signature Bank in JerichoSeller's obtaining Buyer's specific performance hereof, New York.
(f) If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for to Buyer's payment of the DepositPurchase Price. For purposes of Buyer's foregoing grant to Seller of the right to Buyer's specific performance of all of Buyer's obligations hereunder, Escrow Agent shall give written notice Buyer acknowledges that under the current circumstances applicable to ACEC, ACEC's management and Seller's management, and Seller's sale of the ACEC Membership Interest, Seller's remedies at law would not be adequate to enable Seller to obtain all of the benefits of the subject sale (or benefits comparable thereto); and Buyer does hereby irrevocably waive any objection to Seller's foregoing right of specific performance hereunder. Notwithstanding anything to the other party of such demand. If Escrow Agent does not receive a written objection from the other party contrary hereinbefore set forth, however, Seller's exclusive remedy hereunder shall be either (i) to the proposed payment within ten (10) days after the giving of such notice, TIME BEING OF THE ESSENCE, 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 of a court of competent jurisdiction. However, ▇▇▇▇▇▇ Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk accept Seller's receipt of the Supreme Court of the County of Suffolk, State of New York. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit Escrow Agent shall be released and discharged of and from all further obligations and responsibilities hereunder.
(g) Notwithstanding anything contained in this Agreement to the contraryDeposit as liquidated damages, in the event that Purchaser Seller shall fail not elect (as hereinbefore provided) to commence an action within thirty pursue Buyer's specific performance of Buyer's obligations under this Agreement, or (30ii) days after Escrow Agent receives written notice to accept Seller's receipt of objection from Purchaser, TIME BEING OF THE ESSENCE, then Escrow Agent shall have the absolute and unconditional right to deliver the Deposit to Seller, and thereafter Escrow Agent shall be released as partial performance by Buyer of all of its Buyer's obligations and duties hereunder.under this
Appears in 1 contract
Sources: Membership Purchase Agreement (Charter Communications Holdings Capital Corp)
Deposit in Escrow. Section 4.01 Simultaneously with the execution and delivery of this Agreement, Purchaser has delivered the Deposit to the Escrow Agent to be held in escrow by the Escrow Agent on the following terms and conditions:
(a) The Deposit paid shall be deposited in a money market account in Citibank, N.A.
(b) The Escrow Agent shall deliver the Deposit to Seller or to Purchaser, as the case may be, upon the following conditions:
(c) The Deposit to Seller, at the Closing or
(d) the Deposit to Seller, upon receipt of written demand therefor signed by Seller, stating that Purchaser has defaulted in the performance of its obligations under this Agreement and Seller has terminated this Agreement on execution hereof account of said default of Purchaser, provided, however, the Escrow Agent shall not honor such demand in either case until not less than 10 days after the date on which the Escrow Agent shall have provided (in the manner set forth above for the giving of notices) a copy of such demand to Purchaser, nor thereafter if during such 10-day period the Escrow Agent shall have received written notice of objection from Purchaser in accordance with the provisions of this Section; or
(e) the Deposit to Purchaser, upon receipt of written demand therefor signed by Purchaser, stating that (a) this Agreement has been terminated and that Purchaser is being deposited entitled under this Agreement to the return of the Deposit (except that Seller may retain $100,000 to the extent permitted in accordance with ▇▇▇Section 12(b) of this Contract), or (b) Seller has defaulted in the performance of its obligations under this Agreement and Purchaser has terminated this Agreement on account of said default of Seller; provided, however, that the Escrow Agent shall not honor such demand in either case until not less than 10 days after the date on which the Escrow Agent shall have provided (in the manner set forth above for the giving of notices) a copy of such demand to Seller, nor thereafter if during such 10-day period the Escrow Agent shall have received written notice of objection from Seller in accordance with the provisions of this Section.
(f) Any notice, demand or request to the Escrow Agent shall be sufficient only if received by the Escrow Agent within the applicable time period set forth herein, if any. Notices, demands and requests to the Escrow Agent shall be given to it at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, attorneys for Seller, at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“Escrow Agent”)▇, who shall hold the proceeds thereof in an ▇▇▇▇ Fund account in accordance with Section 497 of the Judiciary Law, conditioned as follows:
(a) The parties acknowledge that ▇Attention ▇▇▇▇▇ Agent is acting solely as a stakeholder at their request and for their convenience, that Escrow Agent shall not be deemed to be the agent of either party and that Escrow Agent shall not be liable to either party for any act or omission on its part unless taken or suffered in bad faith or in willful disregard of this Agreement or involving gross negligence. Seller and Purchaser jointly and severally indemnify and hold Escrow Agent harmless from and against all costs, claims and expenses (including, but not limited to, reasonable attorneys’ fees as incurred) incurred in connection with the performance of Escrow Agents’ duties hereunder, except with respect to actions or omissions taken or suffered by Escrow Agent in bad faith or in willful disregard of this Agreement or involving gross negligence on the part of Escrow Agent▇.
(b) Escrow Agent may act or refrain from action with respect to 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 fully protected in so acting or refraining from action upon the advice of such counsel.
(c) Escrow Agent has acknowledged its agreement to the provisions of this Section by signing in the place indicated on the signature page of this Agreement.
(d) Escrow Agent or any member of its firm shall be permitted to act as counsel for Seller in any dispute as to the disbursement of the Deposit or any other dispute between the parties whether or not Escrow Agent is in possession of the Deposit and continues to act as Escrow Agent.
(e) Escrow Agent shall be released and held harmless by Purchaser and Seller from all liability or obligation in the event that the deposit made hereunder, or any part thereof, shall be lost by reason of the insolvency or failure of the banking depository with whom the Deposit has been placed. The parties hereto acknowledge that Escrow Agent shall deposit the Deposit with Signature Bank in Jericho, New York.
(f) 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, TIME BEING OF THE ESSENCE, 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 of a court of competent jurisdiction. However, ▇▇▇▇▇▇ Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Supreme Court of the County of Suffolk, State of New York. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit Escrow Agent shall be released and discharged of and from all further obligations and responsibilities hereunder.
(g) Notwithstanding anything contained in this Agreement to the contrary, in the event that Purchaser shall fail to commence an action within thirty (30) days after Escrow Agent receives written notice of objection from Purchaser, TIME BEING OF THE ESSENCE, then Escrow Agent shall have the absolute and unconditional right to deliver the Deposit to Seller, and thereafter Escrow Agent shall be released of all of its obligations and duties hereunder.
Appears in 1 contract
Sources: Lease Agreement (Nexmed Inc)
Deposit in Escrow. Section 4.01 The Deposit paid on execution hereof is being deposited with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, attorneys for Seller, at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“Escrow Agent”), who shall hold the proceeds thereof in an ▇▇▇▇ Fund account in accordance with Section 497 of the Judiciary Law, conditioned as follows:
(a) Concurrently with the execution hereof, Parent has instructed its transfer agent (the “Transfer Agent”) to deliver to the Escrow Agent, to be held in escrow pursuant to the terms of this Agreement, stock certificates representing the Escrow Shares issued in the name of “Corporate Stock Transfer, Inc. as Escrow Agent under agreement dated October 7, 2016”, to be held and administered as provided herein for the benefit of the Company Indemnitees as specified in Schedule A attached hereto. The parties acknowledge that ▇▇▇▇▇▇ Escrow Shares so delivered by the Transfer Agent is acting solely as a stakeholder at their request and for their convenience, that to the Escrow Agent shall not be deemed to be held by the agent of either party and that Escrow Agent shall not be liable to either party for any act or omission on its part unless taken or suffered in bad faith or in willful disregard of this Agreement or involving gross negligence. Seller and Purchaser jointly and severally indemnify and hold Escrow Agent harmless from and against all costs, claims and expenses (including, but not limited to, reasonable attorneys’ fees as incurred) incurred in connection with the performance of Escrow Agents’ duties hereunder, except with respect to actions or omissions taken or suffered by Escrow Agent in bad faith or in willful disregard a segregated trust account (the “Escrow Account”) under the control of this Agreement or involving gross negligence on the part of Escrow Agent.
(b) The Escrow Agent may hereby agrees to act or refrain from action with respect as escrow agent and to any matter referred hold, safeguard and disburse the assets on deposit in the Escrow Account pursuant to herein the terms and conditions hereof. The Escrow Agent shall hold the Escrow Account as a trust account in full reliance upon and accordance with the advice terms of counsel which may be selected by it (including any member this Agreement. The Escrow Agent’s duties hereunder shall terminate upon its distribution of its firm) and shall be fully protected the entire Escrow Account in so acting or refraining from action upon the advice of such counselaccordance with this Agreement.
(c) Except as herein provided, the Company Indemnitees shall retain all of their rights as stockholders of Parent with respect to the Escrow Shares during the period the Escrow Shares are held by the Escrow Agent has acknowledged its agreement (the “Escrow Period”); provided, however, that with respect to the provisions of this Section by signing Escrow Shares held in the place indicated on Escrow Account, the signature page of this Agreementright to vote such Escrow Shares shall be exercised solely by the Company Representative in his discretion.
(d) During the Escrow Period, all dividends payable in cash with respect to the Escrow Shares (“Cash Dividends”) and all dividends payable in stock or other non-cash property, including shares issued upon a stock split (“Non-Cash Dividends”), shall each be delivered to the Escrow Agent or any member of its firm to hold in the Escrow Account in accordance with the terms hereof. As used herein, the term “Escrow Account” shall be permitted deemed to act as counsel for Seller in any dispute as to include the disbursement of the Deposit or any other dispute between the parties whether or not Escrow Agent is in possession of the Deposit Cash Dividends and continues to act as Escrow AgentNon-Cash Dividends distributed thereon, if any.
(e) During the Escrow Agent shall Period, no sale, transfer or other disposition may be released and held harmless by Purchaser and Seller from made of any or all liability or obligation of the Escrow Shares in the event that Escrow Account. During the deposit made hereunderEscrow Period, no Company Indemnitee shall pledge or any part thereof, shall be lost by reason grant a security interest in such Company Indemnitee’s shares of the insolvency or failure of the banking depository with whom the Deposit has been placed. The parties hereto acknowledge that Escrow Agent shall deposit the Deposit with Signature Bank in Jericho, New York.
(f) 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, TIME BEING OF THE ESSENCE, 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 of a court of competent jurisdiction. However, ▇▇▇▇▇▇ Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Supreme Court of the County of Suffolk, State of New York. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit Escrow Agent shall be released and discharged of and from all further obligations and responsibilities hereunder.
(g) Notwithstanding anything contained in this Agreement to the contrary, Parent Common Stock included in the event that Purchaser shall fail to commence an action within thirty (30) days after Escrow Agent receives written notice of objection from Purchaser, TIME BEING OF THE ESSENCE, then Escrow Agent shall have the absolute and unconditional right to deliver the Deposit to Seller, and thereafter Escrow Agent shall be released of all of its obligations and duties hereunderAccount or grant a security interest in such Company Indemnitee’s rights under this Agreement.
Appears in 1 contract
Deposit in Escrow. Section 4.01 The (a) On (or within two business days after) the Signature Date, Buyer will deposit in escrow with the Escrow Agent under the Deposit paid Escrow Agreement the sum of Four Million Nine Hundred Fifty Thousand Dollars ($4,950,000) (the "Deposit"). At the Closing, Buyer and Seller shall authorize and direct the Escrow Agent to pay the Deposit plus accrued interest to Seller on execution hereof is being deposited with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLPthe Closing Date, attorneys for Sellerwhich combined sum shall be credited against the Purchase Price. In the event that the Closing shall not occur prior to the Outside Date by reason of any breach or default hereunder by Buyer as determined by a Final Order, at ▇▇▇▇ ▇▇▇▇▇▇▇▇and provided that Seller shall have performed, ▇▇▇▇ ▇▇▇▇▇or shall stand ready, ▇▇▇ ▇▇▇▇willing, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“and able to perform, its obligations under this Agreement in all material respects, the Escrow Agent”), who shall hold the proceeds thereof in an ▇▇▇▇ Fund account in accordance with Section 497 the terms of the Judiciary LawDeposit Escrow Agreement, conditioned shall pay the Deposit and all accrued interest to Seller, which Seller shall retain as follows:
liquidated damages, and upon such payment, all obligations of Buyer to Seller (aand all obligations of Seller to Buyer) The parties acknowledge that ▇▇▇▇▇▇ Agent is acting solely hereunder shall terminate, except as a stakeholder at their request otherwise expressly provided in the Deposit Escrow Agreement with respect to such legal fees and for their convenienceexpenses, that Escrow Agent shall not be deemed to be the agent of either party and that Escrow Agent shall not be liable to either party for any act or omission on its part unless taken or suffered in bad faith or in willful disregard of this Agreement or involving gross negligence. if any, as Seller and Purchaser jointly and severally indemnify and hold Escrow Agent harmless from and against all costs, claims and expenses (including, but not limited to, reasonable attorneys’ fees as incurred) may have incurred in connection with obtaining the performance foregoing payment. Seller and Buyer hereby agree that any damages which Seller or any person claiming through or under Seller may at any time allege to have been suffered by Seller or any such person arising out of or related to any breach by Buyer are not easily measured and that the proceeds of the Deposit and all accrued interest represent a reasonable estimate of the damages to be suffered by Seller and not a penalty. Accordingly, Buyer and Seller hereby agree that the payment of the proceeds of the Deposit and all accrued interest shall be a liquidated sum in full satisfaction and complete payment of all such damages and in lieu of any and all other damages, including without limitation, all consequential, incidental and punitive damages, arising out of or related to such breach by Buyer and that no additional damages shall be payable to Seller or any such person arising out of or related to such breach (except as otherwise expressly provided in the Deposit Escrow Agents’ duties hereunder, except Agreement with respect to actions or omissions taken or suffered by Escrow Agent such legal fees and expenses, if any, as Seller may have incurred in bad faith or in willful disregard of this Agreement or involving gross negligence on connection with obtaining the part of Escrow Agentforegoing payment).
(b) In the event that (i) the Closing does not occur prior to the Outside Date for any reason other than a breach or default by Buyer under this Agreement, or (ii) this Agreement is terminated by Buyer or Seller for any reason in accordance with Section 14 (other than a termination by Seller based upon a breach or default by Buyer under this Agreement), Buyer and Seller shall authorize and direct the Escrow Agent may act or refrain from action to return the Deposit plus interest to Buyer, in accordance with respect the terms of the Deposit Escrow Agreement, without prejudice to any matter referred to herein in full reliance upon and with the advice other of counsel which may be selected by it (including any member of its firm) and shall be fully protected in so acting or refraining from action upon the advice of such counselBuyer's remedies hereunder.
(c) Escrow Agent has acknowledged its agreement to Concurrent with the provisions of this Section by signing in the place indicated on the signature page execution of this Agreement.
(d) , Buyer, Seller and Escrow Agent or any member of its firm shall be permitted to act as counsel for Seller in any dispute as are entering into the Deposit Escrow Agreement, subject to the disbursement Escrow Agent's timely receipt of the Deposit or any other dispute between the parties whether or not Escrow Agent is in possession of the Deposit and continues pursuant to act as Escrow AgentSection 3.2(a).
(e) Escrow Agent shall be released and held harmless by Purchaser and Seller from all liability or obligation in the event that the deposit made hereunder, or any part thereof, shall be lost by reason of the insolvency or failure of the banking depository with whom the Deposit has been placed. The parties hereto acknowledge that Escrow Agent shall deposit the Deposit with Signature Bank in Jericho, New York.
(f) 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, TIME BEING OF THE ESSENCE, 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 of a court of competent jurisdiction. However, ▇▇▇▇▇▇ Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Supreme Court of the County of Suffolk, State of New York. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit Escrow Agent shall be released and discharged of and from all further obligations and responsibilities hereunder.
(g) Notwithstanding anything contained in this Agreement to the contrary, in the event that Purchaser shall fail to commence an action within thirty (30) days after Escrow Agent receives written notice of objection from Purchaser, TIME BEING OF THE ESSENCE, then Escrow Agent shall have the absolute and unconditional right to deliver the Deposit to Seller, and thereafter Escrow Agent shall be released of all of its obligations and duties hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Scott Cable Communications Inc)