Escrow Provisions. a. Escrow Agent shall hold the Funds, together with all interest earned thereon, in Escrow Agent’s escrow account at a bank reasonably satisfactory to Landlord and Tenant, and shall cause the Funds to earn interest at such bank’s then prevailing insured money market rates on deposits of similar size, or in a federal money market mutual fund. Escrow Agent shall have no liability for any fluctuations in the interest rate paid by such bank or in such mutual fund on the Funds, and is not a guarantor thereof. b. If Escrow Agent receives a notice signed by both Landlord and Tenant stating that this Agreement has been terminated or canceled, Escrow Agent shall deliver the Funds (or remaining balance thereof), together with the interest thereon, as directed therein. c. If Escrow Agent receives a written request signed by Landlord or Tenant (the “Noticing Party”) stating that this Agreement has been canceled or terminated and that the Noticing Party is entitled to all or a portion of the Funds, or that the other party hereto (the “Non-Noticing Party”) has defaulted in the performance of its obligations hereunder and that the Noticing Party is entitled to all or a portion of the Funds, Escrow Agent shall deliver (by any of the methods of service described in Section 13 above) a copy of such request to the Non-Noticing Party. The Non-Noticing Party shall have the right to object to such request for the Funds, or portion thereof, by notice of objection delivered to and received by Escrow Agent within seven (7) Business Days after the date of Escrow Agent’s submitting such copy to the Non-Noticing Party, but not thereafter. If Escrow Agent shall not have so received a notice of objection from the Non-Noticing Party, Escrow Agent shall deliver the Funds (or portion thereof, as applicable), together with the interest earned thereon, to the Noticing Party. If Escrow Agent shall have received a notice of objection within the time herein prescribed, Escrow Agent shall refuse to comply with any requests or demands on it and shall continue to hold the balance of the Funds, together with any interest earned thereon, until Escrow Agent receives either (a) a notice signed by both Landlord and Tenant stating who is entitled to the Funds (or remaining portion thereof, as applicable) and interest or (b) a final order of a court of competent jurisdiction directing disbursement of the Funds and interest in a specific manner, in either of which events Escrow Agent shall then disburse the Funds (or portion thereof, as applicable), together with the interest earned thereon, in accordance with such notice or order. Escrow Agent shall not be or become liable in any way or to any person for its refusal to comply with any such requests or demands until and unless it has received a direction of the nature described in subdivision (a) or (b) above. Notwithstanding anything to the contrary contained in this Section 14, Tenant shall have no right to object to the release of the Funds for the sole payment of the Monthly Rent pursuant to the second sentence of Section 6 above, and any notice of objection shall be disregarded by the Escrow Agent. For the purposes hereof the term “Business Days” shall mean all days except Saturdays, Sundays, and state or national legal holidays. d. Any notice to Escrow Agent shall be sufficient only if received by Escrow Agent within the applicable time period set forth herein. All mailings and notices from Escrow Agent to Landlord and/or Tenant, or from Landlord and/or Tenant to Escrow Agent, provided for herein shall be addressed to the party to receive such notice at its notice address set forth in Section 13 above (with copies to be similarly sent to the additional persons therein indicated). e. Notwithstanding the foregoing, if Escrow Agent shall have received a notice of objection as provided for in Section 14(c) above within the time therein prescribed, or shall have received at any time before actual disbursement of the Funds a notice signed by either Landlord or Tenant disputing entitlement to the Funds (or portion thereof, as applicable) or shall otherwise believe in good faith at any time that a disagreement or dispute has arisen between the parties hereto over entitlement to the Funds (whether or not litigation has been instituted), Escrow Agent shall have the right, upon notice to both Landlord and Tenant, (a) to deposit the Funds, together with the interest earned thereon with the Clerk of the Court in which any litigation is pending, and/or (b) to take such reasonable affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Agent, including, without limitation, the depositing of the Funds (or remaining balance thereof, as applicable), together with the interest earned thereon, with a court of competent jurisdiction and the commencement of an action for interpleader, the costs thereof to be borne by whichever of Landlord or Tenant is the losing party, and thereupon Escrow Agent shall be released of and from all liability hereunder except for any previous gross negligence or willful misconduct. f. Escrow Agent shall not be liable for any error in judgment or any act done or omitted by it in good faith or pursuant to court order, or for any mistake of fact or law. Escrow Agent shall not incur any liability in acting upon any document or instrument believed thereby to be genuine. Escrow Agent is hereby released and exculpated from all liability hereunder, except only for willful misconduct or gross negligence. Escrow Agent may assume that any person purporting to give it any notice on behalf of any party has been authorized to do so. Escrow Agent shall not be liable for, and Landlord and Tenant 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, including the cost and expense of defending itself against any claim arising hereunder. g. The Escrow Agent’s undertaking to perform its obligations hereunder is made in conjunction with the Escrow Agent’s services in connection with administering the Closing under the Contract. The Escrow Agent shall not be entitled to receive a separate fee for acting as the Escrow Agent under this Agreement.
Appears in 1 contract
Sources: Sale Purchase Agreement (American Realty Capital New York Recovery Reit Inc)
Escrow Provisions. a. 27. The Escrow Agent shall hold the FundsEscrowed Funds in an interest bearing account, together with all and interest earned thereon, in Escrow Agent’s escrow account at a bank reasonably satisfactory to Landlord and Tenant, and shall cause the Funds to earn interest at such bank’s then prevailing insured money market rates on deposits of similar size, or in a federal money market mutual fund. Escrow Agent shall have no liability for any fluctuations in the interest rate paid by such bank or in such mutual fund on the Funds, and is not Escrowed Funds shall be paid to the DCR or Developer on a guarantor thereof.
b. If Escrow Agent receives a notice signed by both Landlord and Tenant stating that this Agreement has been terminated or canceled, Escrow Agent shall deliver pro rata basis based on the Funds (or remaining balance thereof), together with the interest thereon, as directed therein.
c. If Escrow Agent receives a written request signed by Landlord or Tenant (the “Noticing Party”) stating that this Agreement has been canceled or terminated and that the Noticing Party is entitled to all or a portion of the Funds, or that the other party hereto (the “Non-Noticing Party”) has defaulted in the performance of its obligations hereunder and that the Noticing Party is entitled to all or a portion principal amount of the Funds, Escrow Agent shall deliver (by any of the methods of service described in Section 13 above) a copy of such request to the Non-Noticing Party. The Non-Noticing Party shall have the right to object Escrowed Funds paid to such request for the Funds, or portion thereof, by notice of objection delivered to and received by Escrow Agent within seven (7) Business Days after the date of Escrow Agent’s submitting such copy to the Non-Noticing Party, but not thereafter. If Escrow Agent shall not have so received a notice of objection from the Non-Noticing Party, Escrow Agent shall deliver the Funds (or portion thereofparties, as applicable), together .
28. In the event of any disagreement between the Developer and DCR with respect to the Work (or the cost thereof) or any other matter arising hereunder in connection with the interest earned thereonEscrowed Funds, the parties agree to work together, each acting reasonably and in good faith, to resolve the same. If the parties resolve their dispute, they shall issue joint written instruction to the Escrow Agent, to the Noticing Partyextent such dispute pertains to the escrowed funds or otherwise affects the service of the Escrow Agent hereunder. If the Developer and DCR fail to reach an agreement within thirty (30) days of notice of such disagreement, then any party or the Escrow Agent shall have received a notice of objection within the time herein prescribed, Escrow Agent shall refuse is hereby authorized and directed to comply file an interpleader action with any requests or demands on it and shall continue to hold the balance of the Funds, together with any interest earned thereon, until Escrow Agent receives either (a) a notice signed by both Landlord and Tenant stating who is entitled to the Funds (or remaining portion thereof, as applicable) and interest or (b) a final order of a court of competent jurisdiction directing disbursement of jurisdiction
29. ▇▇▇▇▇▇▇▇▇ agrees to indemnify the Funds and interest in a specific manner, in either of which events Escrow Agent shall then disburse and to hold the Funds (or portion thereof, as applicable), together with the interest earned thereon, in accordance with such notice or order. Escrow Agent shall not be or become liable in harmless from and against any way or to any person for its refusal to comply with any such requests or demands until and unless it has received a direction of the nature described in subdivision all claims, damages, losses, liabilities, judgments and expenses (a) or (b) above. Notwithstanding anything to the contrary contained in this Section 14, Tenant shall have no right to object to the release of the Funds for the sole payment of the Monthly Rent pursuant to the second sentence of Section 6 above, and any notice of objection shall be disregarded by the Escrow Agent. For the purposes hereof the term “Business Days” shall mean all days except Saturdays, Sundays, and state or national legal holidays.
d. Any notice to Escrow Agent shall be sufficient only if received by Escrow Agent within the applicable time period set forth herein. All mailings and notices from Escrow Agent to Landlord and/or Tenant, or from Landlord and/or Tenant to Escrow Agent, provided for herein shall be addressed to the party to receive such notice at its notice address set forth in Section 13 above (with copies to be similarly sent to the additional persons therein indicated).
e. Notwithstanding the foregoing, if Escrow Agent shall have received a notice of objection as provided for in Section 14(c) above within the time therein prescribed, or shall have received at any time before actual disbursement of the Funds a notice signed by either Landlord or Tenant disputing entitlement to the Funds (or portion thereof, as applicable) or shall otherwise believe in good faith at any time that a disagreement or dispute has arisen between the parties hereto over entitlement to the Funds (whether or not litigation has been instituted), Escrow Agent shall have the right, upon notice to both Landlord and Tenant, (a) to deposit the Funds, together with the interest earned thereon with the Clerk of the Court in which any litigation is pending, and/or (b) to take such reasonable affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Agent, including, without limitation, all reasonable fees and expenses of counsel and all expenses of litigation or preparation therefor) that the depositing of the Funds (or remaining balance thereof, as applicable), together with the interest earned thereon, with a court of competent jurisdiction and the commencement of an action for interpleader, the costs thereof to be borne by whichever of Landlord or Tenant is the losing party, and thereupon Escrow Agent shall be released of and from all liability hereunder except for any previous gross negligence or willful misconduct.
f. Escrow Agent shall not be liable for any error in judgment or any act done or omitted by it in good faith or pursuant to court order, or for any mistake of fact or law. Escrow Agent shall not incur any liability in acting upon any document or instrument believed thereby to be genuine. Escrow Agent is hereby released and exculpated from all liability hereunder, except only for willful misconduct or gross negligence. Escrow Agent may assume incur or that any person purporting to give it any notice on behalf of any party has been authorized to do so. may be asserted against the Escrow Agent shall not be liable for, and Landlord and Tenant hereby jointly and severally agree to indemnify in connection with the performance of the Escrow Agent against, any loss, liability Agent's duties hereunder or expense, including reasonable attorney’s fees paid to retained attorneys, arising out of any dispute under investigation, litigation or proceeding involving this Agreement, MOU (including the cost and expense compliance with or contesting of defending itself any subpoenas or other process issued against any claim arising hereunder.
g. The Escrow Agent’s undertaking to perform its obligations hereunder is made in conjunction with the Escrow Agent’s services in connection ), whether or not the Escrow Agent is a party thereto, other than claims, damages, losses, liabilities or judgments with administering respect to any matter as to which the Closing under the Contract. The Escrow Agent shall have been adjudicated not be entitled to receive a separate fee for acting as have acted in good faith. Promptly upon receipt by the Escrow Agent under this Agreementof notice of the commencement of any action, the Escrow Agent shall, if a claim in respect thereof is to be made against any other party hereto hereunder, notify such party in writing of the commencement thereof.
Appears in 1 contract
Sources: Memorandum of Understanding
Escrow Provisions. a. Escrow Agent The Deposit shall hold be held in escrow by Lead Title Company upon the Fundsfollowing terms:
(a) The Deposit shall be deposited in a special interest-bearing commercial bank reasonably acceptable to both Purchaser and Seller or, together at the request of Purchaser, may be invested by Lead Title Company in such interest-bearing notes, bonds, bills or other obligations as may from time to time be requested in writing by Purchaser, provided only that such notes, bonds, bills or other obligations are regularly traded on a recognized public securities market. All interest earned on the Deposit shall be the property of the party ultimately receiving payment of the Deposit and shall be paid to such party at the earlier to occur of (i) the Closing or (ii) the date upon which the Deposit is paid to Seller or Purchaser, as the case may be, in accordance with all the terms of this Agreement.
(b) Lead Title Company shall deliver the Deposit (including interest earned thereon) to Seller or Purchaser, in Escrow Agent’s escrow account at a bank reasonably satisfactory to Landlord and Tenantas the case may be, and shall cause the Funds to earn interest at such bank’s then prevailing insured money market rates on deposits of similar size, or in a federal money market mutual fund. Escrow Agent shall have no liability for any fluctuations in the interest rate paid by such bank or in such mutual fund on the Fundsfollowing conditions:
(i) to Seller, and is not a guarantor thereof.
b. If Escrow Agent receives upon receipt of a notice signed by both Landlord and Tenant the parties hereto stating that this Agreement the Closing has been terminated or canceledconsummated;
(ii) to Seller, Escrow Agent shall deliver the Funds (or remaining balance thereof), together with the interest thereon, as directed therein.
c. If Escrow Agent receives a written request upon receipt of demand therefor signed by Landlord or Tenant (the “Noticing Party”) Seller stating that this Agreement has been canceled or terminated and that the Noticing Party is entitled to all or a portion of the Funds, or that the other party hereto (the “Non-Noticing Party”) Purchaser has defaulted in the performance of its obligations hereunder and under this Agreement; PROVIDED, however, that Lead Title Company shall not honor such demand until at least fifteen (15) days after the Noticing Party is entitled date on which Lead Title Company shall have sent to all or a portion of the Funds, Escrow Agent shall deliver (by any of the methods of service described in Section 13 above) Purchaser a copy of such request demand, nor thereafter following such 15-day period if Lead Title Company shall have received a notice of objection, within such 15-day period, from Purchaser given in accordance with the provisions of Sections 12(c) and (d) hereof;
(iii) to Purchaser, upon receipt of demand therefor signed by Purchaser stating that either Seller has defaulted in the performance of its obligations under this Agreement or that Purchaser is otherwise entitled to the Nonrefund of the Deposit pursuant to the terms of this Agreement; PROVIDED, HOWEVER, that Lead Title Company shall not honor such demand until at least fifteen (15) days after the date on which Lead Title Company shall have sent to Seller a copy of such demand, nor thereafter following such 15-Noticing Partyday period if Lead Title Company shall have received a notice of objection, within such 15-day period, from Seller given in accordance with the provisions of Sections 12(c) and (d) hereof.
(c) Any notice to or demand upon Lead Title Company shall be in writing and shall be sufficient only if received by Lead Title Company within the applicable time periods set forth herein, if any. The Non-Noticing Party Notices to or demands upon Lead Title Company shall be (1) sent by overnight courier (with receipt requested), to Lead Title Company at the address set forth in Section 8 hereof or at such other address as Lead Title Company shall have last designated by notice to Seller and Purchaser, or (2) served personally upon Lead Title Company with receipt acknowledged in writing by Lead Title Company. Notices from Lead Title Company to Seller or Purchaser shall be (1) sent by overnight courier (with receipt requested) to their respective addresses set forth in Section 8 hereof or at such other address as the party in question shall have last designated by notice to Lead Title Company, or (2) served personally with receipt acknowledged in writing by the addressee.
(d) Upon receipt of a demand for the Deposit made by Seller or Purchaser pursuant to Section 12(b)(ii) or (iii), Lead Title Company shall promptly send a copy thereof to the other party hereto. Such other party shall have the right to object to such request for the Funds, or portion thereof, delivery of the Deposit by sending to Lead Title Company notice of objection delivered to and received by Escrow Agent within seven fifteen (715) Business Days days after the date of Escrow Agent’s submitting on which Lead Title Company shall have sent such copy to the Non-Noticing Partysuch party, but not thereafter. If Escrow Agent shall not have so received a Upon receipt of such notice of objection from the Non-Noticing Partyobjection, Escrow Agent Lead Title Company shall deliver the Funds (or portion thereof, as applicable), together with the interest earned thereon, promptly send a copy thereof to the Noticing Party. party who made the written demand.
(e) If Escrow Agent (i) Lead Title Company shall have received a notice of objection as provided for in Section 12(d) hereof within the time herein prescribedtherefor prescribed or (ii) any other disagreement or dispute shall arise between the parties hereto or any other persons resulting in adverse claims and demands being made for the Deposit, Escrow Agent whether or not litigation has been instituted, then and in any such event Lead Title Company shall refuse to comply with any requests claims or demands on it it, and shall continue to hold the balance of the Funds, together with any interest earned thereon, Deposit until Escrow Agent Lead Title Company receives either (ax) a written notice signed by both Landlord and Tenant stating who is entitled to parties hereto directing the Funds (or remaining portion thereof, as applicable) and interest disbursement of the Deposit or (by) a final order of a court of competent jurisdiction jurisdiction, entered in an action, suit or proceeding to which Seller and Purchaser are parties, directing the disbursement of the Funds and interest in a specific mannerDeposit, in either of which events Escrow Agent Lead Title Company shall then disburse the Funds (or portion thereof, as applicable), together with the interest earned thereon, Deposit in accordance with such notice or orderdirection. Escrow Agent Lead Title Company shall not be or become liable in any way or to any person for its refusal to comply with any such requests or claims and demands unless and until and unless it has received a direction such direction. Upon compliance with such direction, Lead Title Company is hereby absolved of the nature described in subdivision (a) or (b) above. Notwithstanding anything to the contrary contained in this Section 14, Tenant shall have no right to object to the release of the Funds for the sole payment of the Monthly Rent pursuant to the second sentence of Section 6 above, and released from any notice of objection shall be disregarded by the Escrow Agent. For the purposes hereof the term “Business Days” shall mean and all days except Saturdays, Sundays, and state or national legal holidaysliability hereunder.
d. Any notice to Escrow Agent shall be sufficient only if received by Escrow Agent within the applicable time period set forth herein. All mailings and notices from Escrow Agent to Landlord and/or Tenant, or from Landlord and/or Tenant to Escrow Agent, provided for herein shall be addressed to the party to receive such notice at its notice address set forth in Section 13 above (with copies to be similarly sent to the additional persons therein indicated).
e. f) Notwithstanding the foregoing, if Escrow Agent shall have received a notice of objection as provided for in Section 14(c) above within the time therein prescribed, or shall have received Lead Title Company may at any time before actual disbursement of the Funds a time, on notice signed by either Landlord or Tenant disputing entitlement to the Funds (or portion thereofparties, as applicable) or shall otherwise believe in good faith at any time that a disagreement or dispute has arisen between the parties hereto over entitlement to the Funds (whether or not litigation has been instituted), Escrow Agent shall have the right, upon notice to both Landlord and Tenant, (a) to deposit the Funds, Deposit (together with the any interest earned thereon with the Clerk of the Court in which any litigation is pending, and/or (bor accrued thereon) to take such reasonable affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Agent, including, without limitation, the depositing of the Funds (or remaining balance thereof, as applicable), together with the interest earned thereon, with a court of competent jurisdiction and, if desired by Lead Title Company, commence an impleader action against any party hereto not theretofore before such court or an interpleader action against both parties hereto. Upon the taking by Lead Title Company of any action described in this Section 12(f), Lead Title Company is hereby absolved of and the commencement of an action for interpleaderreleased from any and all liability hereunder.
(g) Except as otherwise provided herein, the parties shall reimburse Lead Title Company in equal shares for all reasonable costs thereof and expenses incurred in performing its duties as escrow holder including, but not limited to, reasonable attorneys' fees, disbursements and court costs, either paid to be borne by whichever retained attorneys or in an amount representing the fair value of Landlord legal services rendered to itself, disbursements and court costs. Lead Title Company is acting hereunder as a depository only and is not responsible or Tenant is liable in any manner whatsoever for the losing partysufficiency, and thereupon Escrow Agent shall be released correctness, genuineness or validity of and from all liability hereunder except for any previous gross negligence or willful misconduct.
f. Escrow Agent shall not be liable for any error in judgment instrument deposited with it or any act done notice or omitted by demand given to it in good faith or pursuant to court orderfor the form or execution of any such instrument, notice or demand, or for the identification, authority or rights of any mistake person executing, depositing or giving the same or for the terms and conditions of fact any instrument pursuant to which the parties may act.
(h) Lead Title Company is acting solely as a stakeholder with respect to the Deposit. Lead Title Company shall not have any duties or law. Escrow Agent responsibilities, except those set forth in this Section 12, and shall not incur any liability (i) in acting upon any signature, notice, demand, request, waiver, consent, receipt or other paper or document or instrument believed thereby by Lead Title Company to be genuine. Escrow Agent is hereby released genuine and exculpated from all liability hereunder, except only for willful misconduct or gross negligence. Escrow Agent Lead Title Company 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. Escrow Agent shall not be liable for, and Landlord and Tenant hereby jointly and severally agree so or (ii) in otherwise acting or failing to indemnify Escrow Agent against, any loss, liability or expense, including reasonable attorney’s fees paid to retained attorneys, arising out of any dispute act under this Agreement, including Section 12 except in the cost case of Lead Title Company's bad faith. Seller and expense Purchaser each hereby release Lead Title Company from any act done or omitted to be done by Lead Title Company in good faith in the performance of defending itself against any claim arising its duties hereunder.
g. (i) Lead Title Company has executed this Agreement for the sole purpose of confirming its agreements contained in this Section 12.
(j) Seller's Federal tax identification number is 76-0615936. Purchaser's Federal tax identification number is 13-54820▇▇.
(k) The Escrow Agent’s undertaking to perform its obligations hereunder is made in conjunction with the Escrow Agent’s services in connection with administering provisions of this Section 12 ▇▇▇▇▇ ▇▇▇▇ive the Closing under or the Contract. The Escrow Agent shall not be entitled to receive a separate fee for acting as the Escrow Agent under termination of this Agreement.
Appears in 1 contract
Escrow Provisions. a. The Deposit and any other sums (including, without limitation, any interest earned thereon) which the parties agree shall be held in escrow (herein collectively called the “Escrow Deposits”), shall be held by the Escrow Agent, in trust, and disposed of only in accordance with the following provisions:
Section 13.1 The Escrow Agent shall hold invest the Funds, together with all interest earned thereon, Escrow Deposits in Escrow Agent’s escrow account at a bank government insured interest-bearing instruments reasonably satisfactory to Landlord both Buyer and TenantSeller, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, and shall cause promptly provide Buyer and Seller with confirmation of the Funds to earn interest at such bank’s then prevailing insured money market rates on deposits of similar size, or in a federal money market mutual fund. Escrow Agent shall have no liability for any fluctuations in the interest rate paid by such bank or in such mutual fund on the Funds, and is not a guarantor thereofinvestments made.
b. Section 13.2 If Escrow Agent receives a notice signed by both Landlord and Tenant stating that this Agreement has been terminated or canceledthe Second Closing occurs, the Escrow Agent shall deliver the Funds (Escrow Deposit to, or remaining balance thereof)upon the instructions of, together with Seller on the interest thereon, as directed thereinSecond Closing Date.
c. Section 13.3 If for any reason either Closing does not occur on the applicable Closing Date, either Seller or Buyer may deliver written notice to Escrow Agent receives a written request signed by Landlord or Tenant (and the “Noticing Party”) other party stating that the this Agreement has been canceled or terminated and that the Noticing Party such party is entitled to all or a portion disbursement of the Funds, or that ▇▇▇▇▇▇▇ Money pursuant to the other this Agreement. The receiving party hereto shall have ten (the “Non-Noticing Party”10) has defaulted in the performance of its obligations hereunder and that the Noticing Party is entitled to all or a portion of the Funds, Escrow Agent shall deliver (by any of the methods of service described in Section 13 above) a copy business days after receipt of such request to the Non-Noticing Party. The Non-Noticing Party shall have the right notice to object to such request for claim by notifying the Funds, or portion thereof, by requesting party and the Escrow Agent in writing of such objection. If no such notice of objection delivered to and is received by the Escrow Agent within seven (7) Business Days after the date of time period specified above and the Escrow Agent’s submitting such copy to Agent received the Non-Noticing Partyevidence that the receiving party has received the aforesaid notice from the requesting party, but not thereafter. If the Escrow Agent shall not have so received disburse funds equal to the amount specified in the requesting party’s notice promptly after the expiration of the ten (10) business day period. If a notice of objection from is received by the Non-Noticing PartyEscrow Agent, the Escrow Agent shall deliver the Funds (or portion thereof, as applicable), together with the interest earned thereon, to the Noticing Party. If Escrow Agent take no action until it shall have received a notice of objection within (i) written instructions signed by the time herein prescribed, Escrow Agent shall refuse to comply with any requests Seller and the Buyer or demands on it and shall continue to hold the balance of the Funds, together with any interest earned thereon, until Escrow Agent receives either (aii) a notice signed decision by both Landlord and Tenant stating who is entitled to the Funds (or remaining portion thereof, as applicable) and interest or (b) a final order of a court of competent jurisdiction directing disbursement of the Funds and interest in a specific manner, in either of which events Escrow Agent shall then disburse to take certain action.
Section 13.4 The parties acknowledge that the Funds (or portion thereofEscrow Agent is acting solely as a stakeholder at their request and for their convenience, as applicable), together with that the interest earned thereon, in accordance with such notice or order. Escrow Agent shall not be or become liable in any way or deemed to any person for its refusal to comply with any such requests or demands until and unless it has received a direction be the agent of either of the nature described in subdivision (a) or (b) above. Notwithstanding anything to the contrary contained in this Section 14, Tenant shall have no right to object to the release of the Funds for the sole payment of the Monthly Rent pursuant to the second sentence of Section 6 aboveparties, and any notice of objection shall be disregarded by that the Escrow Agent. For the purposes hereof the term “Business Days” shall mean all days except Saturdays, Sundays, and state or national legal holidays.
d. Any notice to Escrow Agent shall be sufficient only if received by Escrow Agent within the applicable time period set forth herein. All mailings and notices from Escrow Agent to Landlord and/or Tenant, or from Landlord and/or Tenant to Escrow Agent, provided for herein shall be addressed to the party to receive such notice at its notice address set forth in Section 13 above (with copies to be similarly sent to the additional persons therein indicated).
e. Notwithstanding the foregoing, if Escrow Agent shall have received a notice of objection as provided for in Section 14(c) above within the time therein prescribed, or shall have received at any time before actual disbursement of the Funds a notice signed by either Landlord or Tenant disputing entitlement to the Funds (or portion thereof, as applicable) or shall otherwise believe in good faith at any time that a disagreement or dispute has arisen between the parties hereto over entitlement to the Funds (whether or not litigation has been instituted), Escrow Agent shall have the right, upon notice to both Landlord and Tenant, (a) to deposit the Funds, together with the interest earned thereon with the Clerk of the Court in which any litigation is pending, and/or (b) to take such reasonable affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Agent, including, without limitation, the depositing of the Funds (or remaining balance thereof, as applicable), together with the interest earned thereon, with a court of competent jurisdiction and the commencement of an action for interpleader, the costs thereof to be borne by whichever of Landlord or Tenant is the losing party, and thereupon Escrow Agent shall be released of and from all liability hereunder except for any previous gross negligence or willful misconduct.
f. Escrow Agent shall not be liable to either of the parties for any error in judgment action or any act done omission on its part taken or omitted by it made in good faith or pursuant to court order, or for any mistake of fact or law. Escrow Agent shall not incur any liability in acting upon any document or instrument believed thereby to be genuine. Escrow Agent is hereby released and exculpated from all liability hereunder, except only for willful misconduct or gross negligence. Escrow Agent may assume that any person purporting to give it any notice on behalf of any party has been authorized to do so. Escrow Agent shall not be liable forfaith, and Landlord and Tenant 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 not in disregard of any dispute under this Agreement, but shall be liable for its negligent acts and for any Liabilities (including the cost reasonable attorneys’ fees, expenses and expense of defending itself against any claim arising hereunder.
g. The Escrow Agent’s undertaking to perform its obligations hereunder is made in conjunction with disbursements) incurred by Seller or Buyer resulting from the Escrow Agent’s services 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, expenses and disbursements) incurred in connection with administering the Closing under performance of the ContractEscrow Agent’s duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.
Section 13.5 Buyer shall pay any income taxes on any interest earned on the Escrow Deposits. Buyer represents and warrants to the Escrow Agent that its taxpayer identification number is as set forth adjacent to Buyer’s signature on the signature page to this Agreement.
Section 13.6 The Escrow Agent shall not be entitled has executed this Agreement in the place indicated on the signature page hereof in order to receive a separate fee for acting as confirm that the Escrow Agent under has received and shall hold the Escrow Deposits in escrow, and shall disburse the Escrow Deposits pursuant to the provisions of this Article 13. The provisions of this Article 13 shall survive each Closing (and not be merged therein) or earlier termination of this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland American Real Estate Trust, Inc.)
Escrow Provisions. a. (a) The Deposit shall be held in escrow by Escrow Agent upon the following terms and conditions:
(i) Escrow Agent shall hold deposit the Funds, together with all Deposit in an interest earned thereon, bearing savings or money-market account;
(ii) Except as otherwise expressly provided in Escrow Agent’s escrow account at a bank reasonably satisfactory to Landlord and Tenant, and shall cause the Funds to earn interest at such bank’s then prevailing insured money market rates on deposits of similar size, or in a federal money market mutual fund. Escrow Agent shall have no liability for any fluctuations in the interest rate paid by such bank or in such mutual fund on the Funds, and is not a guarantor thereof.
b. If Escrow Agent receives a notice signed by both Landlord and Tenant stating that this Agreement has been terminated or canceledAgreement, Escrow Agent shall deliver to Seller the Funds (or remaining balance thereof), Deposit together with the all interest thereon, as directed therein.if any, at and upon the Closing, provided, however, Buyer shall receive a credit at Closing in an amount equal to the interest earned on the Deposit;
c. (iii) If Escrow Agent receives a written request signed by Landlord or Tenant (the “Noticing Party”) stating that this Agreement has been canceled is terminated in accordance with the terms hereof, or terminated and that if the Noticing Party is entitled to all or a portion Closing does not take place under this Agreement by reason of the Funds, or that the other failure of either party hereto (the “Non-Noticing Party”) has defaulted in the performance of its to comply with such party’s obligations hereunder and that the Noticing Party is entitled to all or a portion of the Fundshereunder, Escrow Agent shall deliver pay the Deposit (by any of the methods of service described in Section 13 abovetogether with all interest thereon, if any) a copy of such request to the Non-Noticing Party. The Non-Noticing Party shall have the right to object to such request for the Funds, Seller or portion thereof, by notice of objection delivered to and received by Escrow Agent within seven (7) Business Days after the date of Escrow Agent’s submitting such copy to the Non-Noticing Party, but not thereafter. If Escrow Agent shall not have so received a notice of objection from the Non-Noticing Party, Escrow Agent shall deliver the Funds (or portion thereofBuyer, as applicable), together with the interest earned thereon, to the Noticing Party. If Escrow Agent shall have received a notice of objection within the time herein prescribed, Escrow Agent shall refuse to comply with any requests or demands on it and shall continue to hold the balance of the Funds, together with any interest earned thereon, until Escrow Agent receives either (a) a notice signed by both Landlord and Tenant stating who is entitled to the Funds (or remaining portion thereof, as applicable) and interest or (b) a final order of a court of competent jurisdiction directing disbursement of the Funds and interest in a specific manner, in either of which events Escrow Agent shall then disburse the Funds (or portion thereof, as applicable), together with the interest earned thereoncase may be, in accordance with such notice or order. Escrow Agent shall not be or become liable in any way or to any person for its refusal to comply with any such requests or demands until the provisions of this Agreement.
(iv) For this purpose, Seller and unless it has received a direction of Buyer have each provided and hereby represent that the nature described in subdivision (a) or (b) above. Notwithstanding anything to the contrary contained tax identification numbers set forth against their names in this Section 14, Tenant shall have no right to object to the release of the Funds for the sole payment of the Monthly Rent pursuant to the second sentence of Section 6 above, paragraph are true and any notice of objection shall correct and may be disregarded relied upon by the Escrow Agent. For Interest earned on the purposes hereof the term “Business Days” shall mean all days except Saturdays, SundaysDeposit will not be disbursed to any party unless IRS Form W-9 is executed and delivered to Escrow Agent. Seller’s Tax ID No. ▇▇-▇▇▇▇▇▇▇ Purchaser’s Tax ID No. ▇▇-▇▇▇▇▇▇▇
(b) Seller and Buyer hereby agree that:
(i) The duties of Escrow Agent are only as herein specifically provided, and state or national legal holidays.
d. Any notice to are purely ministerial in nature, and 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 Landlord and/or Tenant, or from Landlord and/or Tenant to Escrow Agent, provided for herein shall be addressed incur no liability whatsoever except to the party to receive such notice at extent of any liability which occurs as a result of its notice address set forth in Section 13 above willful misconduct or gross negligence;
(with copies to be similarly sent to the additional persons therein indicated).
e. Notwithstanding the foregoing, if Escrow Agent shall have received a notice of objection as provided for in Section 14(cii) above within the time therein prescribed, or shall have received at any time before actual disbursement of the Funds a notice signed by either Landlord or Tenant disputing entitlement to the Funds (or portion thereof, as applicable) or shall otherwise believe in good faith at any time that a disagreement or dispute has arisen between the parties hereto over entitlement to the Funds (whether or not litigation has been instituted), Escrow Agent shall have the right, upon notice to both Landlord and Tenant, (a) to deposit the Funds, together with the interest earned thereon with the Clerk of the Court in which any litigation is pending, and/or (b) to take such reasonable affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Agent, including, without limitation, the depositing of the Funds (or remaining balance thereof, as applicable), together with the interest earned thereon, with a court of competent jurisdiction and the commencement of an action for interpleader, the costs thereof to be borne by whichever of Landlord or Tenant is the losing party, and thereupon Escrow Agent shall be released of and from all liability hereunder except for any previous gross negligence or willful misconduct.
f. Escrow Agent shall not be liable or responsible for the collection of the proceeds of any error in judgment or any act done or omitted by it in good faith or pursuant checks used to court orderpay the Deposit;
(iii) In the performance of its duties hereunder, or for any mistake of fact or law. Escrow Agent shall not incur any liability in acting be entitled to rely upon any document document, instrument or instrument signature believed thereby by it to be genuine. Escrow Agent is hereby released genuine and exculpated from all liability hereunder, except only for willful misconduct signed by either of the parties or gross negligence. their successors;
(iv) Escrow Agent may assume that any person purporting to give it any notice on behalf of any party instructions in accordance with the provisions hereof has been duly authorized to do so. ;
(v) Escrow Agent shall not be liable bound by any modification, cancellation or rescission of this Agreement unless in writing and signed by it, Seller and Buyer;
(vi) Seller and Buyer shall jointly and severally reimburse and indemnify Escrow Agent for, and Landlord and Tenant hereby jointly and severally agree to indemnify Escrow Agent hold it harmless against, any and all loss, liability liability, costs or expenseexpenses in connection herewith, including reasonable attorney’s attorneys’ fees paid to retained attorneysand disbursements, incurred by Escrow Agent in connection with its acceptance of, or the performance of its duties and obligations under, this Agreement, as well as the costs and expenses of defending against any claim or liability arising out of or relating to this Agreement except to the extent such loss, liability, costs and expenses result from the gross negligence or willful misconduct of Escrow Agent;
(vii) Seller and Buyer each hereby release Escrow Agent from any act done or omitted to be done by Escrow Agent in good faith in the performance of its duties hereunder; and
(viii) The tax identification numbers of Seller and Buyer are set forth above.
(c) Escrow Agent is acting as a stakeholder only with respect to the Deposit. Escrow Agent, except in the event of the Closing, shall not deliver the Deposit except on seven (7) days’ prior written notice to the parties and only if neither party shall object within such seven (7) day period. If there is any dispute under this Agreementas to whether Escrow Agent is obligated to deliver all or any portion of the Deposit or as to whom such Deposit is to be delivered, including the cost and expense of defending itself against any claim arising hereunder.
g. The Escrow Agent’s undertaking to perform its obligations hereunder is made in conjunction with the Escrow Agent’s services in connection with administering the Closing under the Contract. The Escrow Agent shall not make any delivery, but in such event Escrow Agent shall hold the same until receipt by Escrow Agent of an authorization in writing, signed by all of the parties having any interest in such dispute, directing the disposition of the Deposit (together with all interest thereon, if any), or in the absence of such authorization Escrow Agent shall hold the Deposit (together with all interest thereon, if any), until the final determination of the rights of the parties in an appropriate proceeding. If such written authorization is not given, or proceedings for such determination are not begun within thirty (30) days after the date Escrow Agent shall have received written notice of such dispute, and thereafter diligently continued, Escrow Agent may, but is not required to, bring an appropriate action or proceeding for leave to deposit the Deposit (together with all interest thereon, if any), in court pending such determination. Escrow Agent shall be reimbursed for all costs and expenses of such action or proceeding including, without limitation, reasonable attorneys’ fees and disbursements, by the party determined not to be entitled to receive a separate fee for acting as the Deposit, or if the Deposit is split between the parties hereto, such costs of Escrow Agent under shall be split, pro rata. between Seller and Purchaser, in inverse proportion to the amount of the Deposit received by each. Upon making delivery of the Deposit (together with interest thereon, if any), in the manner provided in this Agreement, Escrow Agent shall have no further liability hereunder.
(d) Escrow Agent has executed this Agreement solely to confirm that Escrow Agent has received the check for the Deposit (subject to collection) and will hold the Deposit, in escrow, pursuant to the provisions of this Agreement.
(e) Notwithstanding anything to the contrary contained in this paragraph, if a dispute arises between the parties hereunder, Belkin Burden Wenig & ▇▇▇▇▇▇▇, LLP, may continue to act as counsel to Seller regardless of its status as Escrow Agent.
Appears in 1 contract
Escrow Provisions. a. The Deposit and any other sums (including, without limitation, any interest earned on such other sums) which the parties agree shall be held in escrow (herein collectively called the “Escrow Deposits”), shall be held by the Escrow Agent, in trust, and disposed of only in accordance with the following provisions:
(a) The Escrow Agent shall hold invest the Funds, together with all Escrow Deposits in government insured non-interest earned thereon, in Escrow Agent’s escrow account at a bank bearing instruments reasonably satisfactory to Landlord both Buyer and TenantSeller, shall not commingle the Escrow Deposits with any funds of the Escrow Agent or others, and shall cause promptly provide Buyer and Seller with confirmation of the Funds to earn interest at such bank’s then prevailing insured money market rates on deposits of similar size, or in a federal money market mutual fund. Escrow Agent shall have no liability for any fluctuations in the interest rate paid by such bank or in such mutual fund on the Funds, and is not a guarantor thereofinvestments made.
b. (b) If Escrow Agent receives a notice signed by both Landlord and Tenant stating that this Agreement has been terminated or canceledthe ▇▇ ▇▇ Closing occurs, the Escrow Agent shall deliver the Funds (Escrow Deposits to, or remaining balance thereof)upon the instructions of, together with Seller on the interest thereon, as directed therein▇▇ ▇▇ Closing Date.
c. (c) If Escrow Agent receives a written request signed by Landlord or Tenant (for any reason the “Noticing Party”) stating that this Agreement has been canceled or terminated and that ▇▇ ▇▇ Closing does not occur, the Noticing Party is entitled to all or a portion of the Funds, or that the other party hereto (the “Non-Noticing Party”) has defaulted in the performance of its obligations hereunder and that the Noticing Party is entitled to all or a portion of the Funds, Escrow Agent shall deliver (by any of the methods of service described in Section 13 above) a copy of such request to the Non-Noticing Party. The Non-Noticing Party shall have the right to object to such request for the Funds, or portion thereof, by notice of objection delivered to and received by Escrow Agent within seven (7) Business Days after the date of Escrow Agent’s submitting such copy to the Non-Noticing Party, but not thereafter. If Escrow Agent shall not have so received a notice of objection from the Non-Noticing Party, Escrow Agent shall deliver the Funds (Escrow Deposits to Seller or portion thereofBuyer only upon receipt of a written demand therefor from such party, as applicable), together with the interest earned thereon, subject to the Noticing Partyfollowing 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 Escrow Deposits, the Escrow Agent shall have received give written notice to the other party of such demand. If the Escrow Agent does not receive a notice 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 the Escrow Agent does receive such written objection within such period, the time herein prescribed, Escrow Agent shall refuse to comply with any requests or demands on it and shall continue to hold such amount until otherwise directed by written instructions signed by Seller and Buyer or a final judgment of a court.
(d) The parties acknowledge that the balance of the Funds, together with any interest earned thereon, until Escrow Agent receives either (a) is acting solely as a notice signed by both Landlord stakeholder at their request and Tenant stating who is entitled to for their convenience, that the Funds (or remaining portion thereof, as applicable) and interest or (b) a final order of a court of competent jurisdiction directing disbursement of the Funds and interest in a specific manner, in either of which events Escrow Agent shall then disburse the Funds (or portion thereof, as applicable), together with the interest earned thereon, in accordance with such notice or order. Escrow Agent shall not be or become liable in any way or deemed to any person for its refusal to comply with any such requests or demands until and unless it has received a direction be the agent of either of the nature described in subdivision (a) or (b) above. Notwithstanding anything to the contrary contained in this Section 14, Tenant shall have no right to object to the release of the Funds for the sole payment of the Monthly Rent pursuant to the second sentence of Section 6 aboveparties, and any notice of objection shall be disregarded by that the Escrow Agent. For the purposes hereof the term “Business Days” shall mean all days except Saturdays, Sundays, and state or national legal holidays.
d. Any notice to Escrow Agent shall be sufficient only if received by Escrow Agent within the applicable time period set forth herein. All mailings and notices from Escrow Agent to Landlord and/or Tenant, or from Landlord and/or Tenant to Escrow Agent, provided for herein shall be addressed to the party to receive such notice at its notice address set forth in Section 13 above (with copies to be similarly sent to the additional persons therein indicated).
e. Notwithstanding the foregoing, if Escrow Agent shall have received a notice of objection as provided for in Section 14(c) above within the time therein prescribed, or shall have received at any time before actual disbursement of the Funds a notice signed by either Landlord or Tenant disputing entitlement to the Funds (or portion thereof, as applicable) or shall otherwise believe in good faith at any time that a disagreement or dispute has arisen between the parties hereto over entitlement to the Funds (whether or not litigation has been instituted), Escrow Agent shall have the right, upon notice to both Landlord and Tenant, (a) to deposit the Funds, together with the interest earned thereon with the Clerk of the Court in which any litigation is pending, and/or (b) to take such reasonable affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Agent, including, without limitation, the depositing of the Funds (or remaining balance thereof, as applicable), together with the interest earned thereon, with a court of competent jurisdiction and the commencement of an action for interpleader, the costs thereof to be borne by whichever of Landlord or Tenant is the losing party, and thereupon Escrow Agent shall be released of and from all liability hereunder except for any previous gross negligence or willful misconduct.
f. Escrow Agent shall not be liable to either of the parties for any error in judgment action or any act done omission on its part taken or omitted by it made in good faith or pursuant to court order, or for any mistake of fact or law. Escrow Agent shall not incur any liability in acting upon any document or instrument believed thereby to be genuine. Escrow Agent is hereby released and exculpated from all liability hereunder, except only for willful misconduct or gross negligence. Escrow Agent may assume that any person purporting to give it any notice on behalf of any party has been authorized to do so. Escrow Agent shall not be liable forfaith, and Landlord and Tenant 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 not in disregard of any dispute under this Agreement, but shall be liable for its negligent acts and for any Liabilities (including the cost reasonable attorneys’ fees, expenses and expense of defending itself against any claim arising hereunder.
g. The Escrow Agent’s undertaking to perform its obligations hereunder is made in conjunction with disbursements) incurred by Seller or Buyer resulting from the Escrow Agent’s services in connection with administering the Closing under the Contract. The Escrow Agent shall not be entitled to receive a separate fee for acting as mistake of law respecting the Escrow Agent under this Agreement.Agent’s scope or nature of
Appears in 1 contract
Sources: Purchase and Sale Agreement (Global Income Trust, Inc.)
Escrow Provisions. a. (a) Escrow Agent is ▇▇▇▇▇▇ appointed and designated to act as ▇▇▇▇▇▇ Agent hereunder and is instructed to hold and deliver, pursuant to the terms of this Agreement, the documents and funds to be deposited into escrow as herein provided. Escrow Agent shall hold the FundsDeposit in escrow in an FDIC insured interest bearing bank account until the earlier to occur of (i) the Closing Date, together with all interest earned thereonat which time the Deposit Amount for the Property that is Closing shall be applied against the Purchase Price payable at such Closing, or (ii) the date on which Escrow Agent is authorized to disburse the Deposit as set forth in this Section 33. The tax identification numbers of the parties shall be furnished to Escrow Agent’s escrow account at a bank reasonably satisfactory to Landlord and TenantAgent upon request.
(b) If the Closing has not yet occurred, and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall cause give written notice to the Funds other party of such demand. If Purchaser requests the return of the Deposit and has not yet delivered a Notice to earn interest Proceed, then Escrow Agent shall immediately return the Deposit to Purchaser and this Agreement will be deemed terminated by Purchaser pursuant to Section 6(d). In all other cases, if Escrow Agent does not receive a written objection from the other party to the proposed payment on or before the fifth (5th) Business Day 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 five (5) Business Day period, then Escrow Agent shall continue to hold such amount until otherwise directed by joint written instructions from the parties to this Agreement or a final judgment or arbitrators’ decision. However, ▇▇▇▇▇▇ Agent shall have the right at such bank’s then prevailing insured money market rates on deposits any time to deposit the Deposit with the clerk of similar size, or a state court in a federal money market mutual fundthe State of Ohio. Escrow Agent shall have no liability for any fluctuations in the interest rate paid by give written notice of such bank or in deposit to Seller and Purchaser. Upon such mutual fund on the Funds, and is not a guarantor thereof.
b. If Escrow Agent receives a notice signed by both Landlord and Tenant stating that this Agreement has been terminated or canceleddeposit, Escrow Agent shall deliver the Funds (or remaining balance thereof), together with the interest thereon, as directed thereinbe relieved and discharged of all further obligations and responsibilities hereunder.
c. If (c) The parties acknowledge that Escrow Agent receives is acting solely as a written stakeholder at their request signed by Landlord or Tenant (the “Noticing Party”) stating and for their convenience, that this Agreement has been canceled or terminated and that the Noticing Party is entitled to all or a portion of the Funds, or that the other party hereto (the “Non-Noticing Party”) has defaulted in the performance of its obligations hereunder and that the Noticing Party is entitled to all or a portion of the Funds, Escrow Agent shall deliver (by any of the methods of service described in Section 13 above) a copy of such request to the Non-Noticing Party. The Non-Noticing Party shall have the right to object to such request for the Funds, or portion thereof, by notice of objection delivered to and received by Escrow Agent within seven (7) Business Days after the date of Escrow Agent’s submitting such copy to the Non-Noticing Party, but not thereafter. If Escrow Agent shall not have so received a notice of objection from the Non-Noticing Party, Escrow Agent shall deliver the Funds (or portion thereof, as applicable), together with the interest earned thereon, to the Noticing Party. If Escrow Agent shall have received a notice of objection within the time herein prescribed, Escrow Agent shall refuse to comply with any requests or demands on it and shall continue to hold the balance of the Funds, together with any interest earned thereon, until Escrow Agent receives either (a) a notice signed by both Landlord and Tenant stating who is entitled to the Funds (or remaining portion thereof, as applicable) and interest or (b) a final order of a court of competent jurisdiction directing disbursement of the Funds and interest in a specific manner, in either of which events Escrow Agent shall then disburse the Funds (or portion thereof, as applicable), together with the interest earned thereon, in accordance with such notice or order. Escrow Agent shall not be or become liable in any way or deemed to any person for its refusal to comply with any such requests or demands until and unless it has received a direction be the agent of either of the nature described parties for any act or omission on its part unless taken or suffered in subdivision (a) bad faith, in willful disregard of this Agreement or (b) aboveinvolving gross negligence. Notwithstanding anything Seller and Purchaser jointly and severally shall indemnify, protect, defend and hold Escrow Agent harmless from and against all losses incurred in connection with the performance of Escrow Agent’s duties hereunder, except with respect to actions or omissions taken or suffered by Escrow Agent in bad faith, in willful disregard of this Agreement or in gross negligence on the contrary contained in this Section 14, Tenant shall have no right to object to the release part of the Funds for the sole payment of the Monthly Rent pursuant to the second sentence of Section 6 above, and any notice of objection shall be disregarded by the Escrow Agent. For the purposes hereof the term “Business Days” shall mean all days except Saturdays, Sundays, and state or national legal holidays.
d. Any notice (d) The parties shall deliver to Escrow Agent an executed copy of this Agreement, which 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 Landlord and/or Tenant, or from Landlord and/or Tenant constitute their instructions to Escrow Agent, provided for herein shall be addressed to the party to receive such notice at its notice address set forth in Section 13 above (with copies to be similarly sent to the additional persons therein indicated).
e. Notwithstanding the foregoing, if Escrow Agent shall have received a notice of objection as provided for in Section 14(c) above within the time therein prescribed, or shall have received at any time before actual disbursement of the Funds a notice signed by either Landlord or Tenant disputing entitlement to the Funds (or portion thereof, as applicable) or shall otherwise believe in good faith at any time that a disagreement or dispute has arisen between the parties hereto over entitlement to the Funds (whether or not litigation has been instituted), Escrow Agent shall have the right, upon notice to both Landlord and Tenant, (a) to deposit the Funds, together with the interest earned thereon with the Clerk of the Court in which any litigation is pending, and/or (b) to take such reasonable affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Agent, including, without limitation, the depositing of the Funds (or remaining balance thereof, as applicable), together with the interest earned thereon, with a court of competent jurisdiction and the commencement of an action for interpleader, the costs thereof to be borne by whichever of Landlord or Tenant is the losing party, and thereupon Escrow Agent shall be released of and from all liability hereunder except for any previous gross negligence or willful misconduct.
f. Escrow Agent shall not be liable for any error in judgment or any act done or omitted by it in good faith or pursuant to court order, or for any mistake of fact or law. Escrow Agent shall execute the signature page for Escrow Agent attached hereto with respect to the provisions of this Section 33; provided, however, that (i) Escrow Agent’s signature hereon shall not incur be a prerequisite to the binding nature of this Agreement on Seller and Purchaser, and the same shall become fully effective upon execution by Seller and Purchaser, and (ii) the signature of Escrow Agent will not be necessary to amend any liability in acting upon provision of this Agreement other than this Section 33.
(e) Escrow Agent, as the person responsible for closing the transaction within the meaning of Section 6045(e)(2)(A) of the Code, shall file all necessary information reports, returns, and statements regarding the transaction required by the Code including the tax reports required pursuant to Section 6045 of the Code. Further, Escrow Agent agrees to indemnify, protect, defend and hold Seller, ▇▇▇▇▇▇▇▇▇ and their respective attorneys and brokers harmless from and against any document or instrument believed thereby Losses resulting from ▇▇▇▇▇▇ Agent’s failure to be genuine. file the reports Escrow Agent is hereby released and exculpated from all liability hereunder, except only for willful misconduct or gross negligence. Escrow Agent may assume that any person purporting required to give it any notice on behalf of any party has been authorized file pursuant to do so. Escrow Agent shall not be liable for, and Landlord and Tenant 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, including the cost and expense of defending itself against any claim arising hereundersection.
g. The Escrow Agent’s undertaking to perform its obligations hereunder is made in conjunction with the Escrow Agent’s services in connection with administering the Closing under the Contract. The Escrow Agent shall not be entitled to receive a separate fee for acting as the Escrow Agent under this Agreement.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Sculptor Diversified Real Estate Income Trust, Inc.)
Escrow Provisions. a. The Escrow Agent joins in the execution of this Agreement solely for the purpose of acknowledging and agreeing to the provisions of this Section 3.2. The duties of the Escrow Agent shall be as follows:
(a) During the term of this Agreement, the Escrow Agent shall hold and disburse the Funds▇▇▇▇▇▇▇ Money in accordance with the terms and provisions of this Agreement.
(b) If Seller or Purchaser becomes entitled to receive the ▇▇▇▇▇▇▇ Money under the terms of this Agreement, together with all interest earned thereon, in then Escrow Agent shall disburse the ▇▇▇▇▇▇▇ Money to the party so entitled five (5) days after Escrow Agent’s escrow account at receipt of written demand from such party specifying the provisions pursuant to which it is entitled to receive the ▇▇▇▇▇▇▇ Money. A copy of such demand must be provided to the other party contemporaneously with its being provided to the Escrow Agent. If the other party has a bank reasonably satisfactory good faith objection to Landlord the disbursement of the ▇▇▇▇▇▇▇ Money in accordance with such demand, it must provide to Escrow Agent and Tenantthe party claiming the entitlement to the ▇▇▇▇▇▇▇ Money, contemporaneously, a written objection to such disbursement, which objection must include a statement setting forth the specific basis of such party’s objection, within such five (5) day period. If the Escrow Agent receives such a written objection within the five (5) day period, then clause (c) below shall apply. If it does not, it shall immediately upon the expiration of such five (5) day period disburse the funds in accordance with such demand.
(c) The Escrow Agent shall pay the ▇▇▇▇▇▇▇ Money in accordance with the joint written instructions of the Seller and the Purchaser in any of the following events: (1) if this Agreement shall cause be terminated by the Funds to earn interest at such bank’s then prevailing insured money market rates on deposits mutual written agreement of similar sizeSeller and Purchaser, or in (2) if the Escrow Agent shall be unable to determine at any time to whom the ▇▇▇▇▇▇▇ Money should be paid, or (3) if a federal money market mutual funddispute shall develop between Seller and Purchaser concerning to whom the ▇▇▇▇▇▇▇ Money should be paid. In the event that the joint written instructions shall not be received by the Escrow Agent within ten (10) days after the Escrow Agent has served a written request for instructions upon Seller and Purchaser, then the Escrow Agent shall have no liability for the option to transfer the ▇▇▇▇▇▇▇ Money to any fluctuations court of competent jurisdiction and interplead Seller and Purchaser in the interest rate paid by such bank or in such mutual fund on the Fundsrespect thereof, and is not a guarantor thereof.
b. If thereupon the Escrow Agent receives a notice signed by both Landlord and Tenant stating that shall be discharged of any obligations in connection with this Agreement has been terminated Agreement. Prior to any such transfer, in any case under (2) or canceled(3) above, Escrow Agent shall deliver always disburse the Funds (or remaining balance thereof), together ▇▇▇▇▇▇▇ Money in accordance with the interest thereon, as directed therein.
c. If Escrow Agent receives a written request signed by Landlord or Tenant (the “Noticing Party”) stating that this Agreement has been canceled or terminated and that the Noticing Party is entitled to all or a portion of the Funds, or that the other party hereto (the “Non-Noticing Party”) has defaulted in the performance of its obligations hereunder and that the Noticing Party is entitled to all or a portion of the Funds, Escrow Agent shall deliver (by any of the methods of service described in Section 13 above) a copy of such request to the Non-Noticing Party. The Non-Noticing Party shall have the right to object to such request for the Funds, or portion thereof, by notice of objection delivered to and received by Escrow Agent within seven (7) Business Days after the date of Escrow Agent’s submitting such copy to the Non-Noticing Party, but not thereafter. If Escrow Agent shall not have so received a notice of objection from the Non-Noticing Party, Escrow Agent shall deliver the Funds (or portion thereof, as applicable), together with the interest earned thereon, to the Noticing Party. If Escrow Agent shall have received a notice of objection within the time herein prescribed, Escrow Agent shall refuse to comply with any requests or demands on it and shall continue to hold the balance of the Funds, together with any interest earned thereon, until Escrow Agent receives either (a) a notice signed by both Landlord and Tenant stating who is entitled to the Funds (or remaining portion thereof, as applicable) and interest or (b) a final order of a court of competent jurisdiction directing disbursement (not subject to further appeal).
(d) If costs or expenses are incurred by the Escrow Agent in its capacity as Escrow Agent because of litigation or a dispute between the Seller and Purchaser arising out of the Funds holding of the ▇▇▇▇▇▇▇ Money in escrow, the non-prevailing party in such dispute shall pay the Escrow Agent all of such reasonable costs and interest expenses. If there is no prevailing party, then the Seller and Purchaser shall each pay one half of such reasonable costs and expenses. Except for such reasonable costs or expenses, no fee or charge shall be due or payable to the Escrow Agent for its services as Escrow Agent.
(e) By joining herein, the Escrow Agent undertakes only to perform the duties and obligations imposed upon the Escrow Agent under the terms of this Agreement and expressly does not undertake to perform any of the other covenants, terms and provisions incumbent upon the Seller and the Purchaser hereunder.
(f) Purchaser and Seller hereby agree and acknowledge that the Escrow Agent assumes no liability in a specific manner, in either of which events connection herewith except for gross negligence or willful misconduct; that the Escrow Agent shall then disburse never be responsible for the Funds (validity, correctness or portion thereofgenuineness of any document or notice referred to under this Agreement; and that in the event of any dispute under this Agreement, as applicable), together with the interest earned thereon, Escrow Agent may seek advice from its own counsel and shall be fully protected in any action taken by it in good faith in accordance with such notice the opinion of its counsel.
(g) The ▇▇▇▇▇▇▇ Money may be processed for collection in the normal course of business by Escrow Agent, which may commingle funds received by it with escrow or ordertrust funds of others, but independently accounted under a separate subaccount thereof, at a federally insured bank of Escrow Agent's choosing (the "Depository"). Escrow Agent shall not be or become liable in accountable for any way or to any person for its refusal to comply with any such requests or demands until and unless it has received a direction of the nature described in subdivision (a) or (b) above. Notwithstanding anything incidental benefit which may be attributable to the contrary contained in this Section 14, Tenant shall have no right to object to the release of the Funds for the sole payment of the Monthly Rent pursuant to the second sentence of Section 6 above, and any notice of objection shall be disregarded by the Escrow Agentfunds so deposited. For the purposes hereof the term “Business Days” shall mean all days except Saturdays, Sundays, and state or national legal holidays.
d. Any notice to Escrow Agent shall be sufficient only if received by Escrow Agent within the applicable time period set forth herein. All mailings and notices from Escrow Agent to Landlord and/or Tenant, or from Landlord and/or Tenant to Escrow Agent, provided for herein shall be addressed to the party to receive such notice at its notice address set forth in Section 13 above (with copies to be similarly sent to the additional persons therein indicated).
e. Notwithstanding the foregoing, if Escrow Agent shall have received a notice of objection as provided for in Section 14(c) above within the time therein prescribed, or shall have received at any time before actual disbursement of the Funds a notice signed by either Landlord or Tenant disputing entitlement to the Funds (or portion thereof, as applicable) or shall otherwise believe in good faith at any time that a disagreement or dispute has arisen between the parties hereto over entitlement to the Funds (whether or not litigation has been instituted), Escrow Agent shall have the right, upon notice to both Landlord and Tenant, (a) to deposit the Funds, together with the interest earned thereon with the Clerk of the Court in which any litigation is pending, and/or (b) to take such reasonable affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Agent, including, without limitation, the depositing of the Funds (or remaining balance thereof, as applicable), together with the interest earned thereon, with a court of competent jurisdiction and the commencement of an action for interpleader, the costs thereof to be borne by whichever of Landlord or Tenant is the losing party, and thereupon Escrow Agent shall be released of and from all liability hereunder except for any previous gross negligence or willful misconduct.
f. Escrow Agent shall not be liable for any error in judgment loss caused by the failure, suspension, bankruptcy or any act done or omitted by it in good faith or pursuant to court order, or for any mistake dissolution of fact or law. Escrow Agent shall not incur any liability in acting upon any document or instrument believed thereby to be genuine. Escrow Agent is hereby released and exculpated from all liability hereunder, except only for willful misconduct or gross negligence. Escrow Agent may assume that any person purporting to give it any notice on behalf of any party has been authorized to do so. the Depository.
(h) Escrow Agent shall not be liable forfor loss or damage resulting from:
(i) any good faith act or forbearance of Escrow Agent;
(ii) any default, error, action or omission of any party, other than Escrow Agent;
(iii) any defect in the title to any property;
(iv) the expiration of any time limit or other delay which is not caused by the failure of Escrow Agent to proceed in its ordinary course of business, and Landlord and Tenant hereby jointly and severally agree in no event where such time limit is not disclosed in writing to indemnify the Escrow Agent;
(v) the lack of authenticity of any writing delivered to Escrow Agent againstor of any signature thereto, any lossor the lack of authority of the signatory to sign such writing;
(vi) Escrow Agent's compliance with all attachments, liability writs, orders, judgments, or expense, including reasonable attorney’s fees paid to retained attorneys, arising other legal process issued out of any dispute under court;
(vii) Escrow Agent's assertion or failure to assert any cause of action or defense in any judicial or administrative proceedings; or
(viii) any loss or damage which arises after the ▇▇▇▇▇▇▇ Money has been disbursed in accordance with the terms of this Agreement, including the cost and expense of defending itself against any claim arising hereunder.
g. The (i) Escrow Agent shall be fully indemnified by the parties hereto, except in the case of Escrow Agent’s undertaking gross negligence or willful misconduct, for all of its expenses, costs, and reasonable attorney's fees incurred in connection with any interpleader action which Escrow Agent may file to perform its obligations hereunder is made in conjunction with resolve any dispute as to the ▇▇▇▇▇▇▇ Money, or which may be filed against the Escrow Agent’s services in connection with administering the Closing under the Contract. The .
(j) If Escrow Agent shall is made a party to any judicial, non-judicial or administrative action, hearing or process based on acts of any of the other parties hereto and not be entitled to receive a separate fee for acting as on the malfeasance and/or negligence of Escrow Agent under this Agreementin performing its duties hereunder, the expenses, costs and reasonable attorney's fees incurred by Escrow Agent in responding to such action, hearing or process may be deducted from the funds held hereunder and the party/parties whose alleged acts are a basis for such proceedings shall indemnify, save and hold Escrow Agent harmless from said expenses, costs and fees so incurred.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Resource Apartment REIT III, Inc.)