AS THE "DEPOSIT".
THE DEPOSIT
SHALL AT ALL TIMES BEFORE THE CLOSING OF THE PURCHASE AND SALE CONTEMPLATED
HEREUNDER (THE "CLOSING") BE INVESTED IN AN INTEREST-BEARING ACCOUNT APPROVED BY
BUYER IN WRITING.
BUYER SHALL PROVIDE THE ESCROW HOLDER WITH ITS TAXPAYER
IDENTIFICATION NUMBER, AND UNLESS THE CLOSING DOES NOT OCCUR AS A RESULT OF
BUYER'S DEFAULT HEREUNDER, ALL INTEREST EARNED ON THE DEPOSIT SHALL BE REPORTED
TO THE APPROPRIATE TAX AUTHORITIES USING BUYER'S TAXPAYER IDENTIFICATION
NUMBER.
AT THE CLOSING, THE DEPOSIT SHALL BE APPLIED TO THE PURCHASE PRICE.
PROVIDED THAT BUYER TIMELY DELIVERS NOTICE TO SELLER OF BUYER'S ELECTION NOT TO
TERMINATE THIS AGREEMENT PURSUANT TO SECTION 3.4 BELOW, PRIOR TO THE EXPIRATION
OF THE INVESTIGATION PERIOD, THE DEPOSIT SHALL BECOME NON-REFUNDABLE (EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH HEREIN).
(C)
THE BALANCE OF THE PURCHASE PRICE, SUBJECT TO ADJUSTMENT
FOR ANY PRORATIONS AND CREDITS PROVIDED HEREUNDER, SHALL BE DEPOSITED WITH
ESCROW HOLDER BY BUYER AT LEAST ONE (1) BUSINESS DAY BEFORE THE CLOSING BY WIRE
TRANSFER OF IMMEDIATELY AVAILABLE FUNDS, FOR DISBURSEMENT PURSUANT TO THE TERMS
HEREOF, WITH THE TRANSFER OF FUNDS TO SELLER TO BE COMPLETED ON THE DAY OF THE
CLOSING.
(D)
UPON MUTUAL EXECUTION OF THIS AGREEMENT, THE PARTIES
HERETO SHALL DEPOSIT AN EXECUTED COUNTERPART OF THIS AGREEMENT WITH TITLE
COMPANY AND THIS AGREEMENT SHALL SERVE AS INSTRUCTIONS TO TITLE COMPANY FOR
CONSUMMATION OF THE PURCHASE CONTEMPLATED HEREBY ("ESCROW").
SELLER AND BUYER
SHALL EXECUTE SUCH SUPPLEMENTAL ESCROW INSTRUCTIONS AS MAY BE APPROPRIATE TO
ENABLE TITLE COMPANY TO COMPLY WITH THE TERMS OF THIS AGREEMENT, PROVIDED THAT
SUCH SUPPLEMENTAL ESCROW INSTRUCTIONS ARE NOT IN CONFLICT WITH THIS AGREEMENT AS
IT MAY BE AMENDED IN WRITING FROM TIME TO TIME.
IN THE EVENT OF ANY CONFLICT
BETWEEN THE PROVISIONS OF THIS AGREEMENT AND ANY SUPPLEMENTARY ESCROW
INSTRUCTIONS SIGNED BY BUYER AND SELLER, THE TERMS OF THIS AGREEMENT SHALL
CONTROL.
TITLE COMPANY SHALL HOLD AND DISPOSE OF THE DEPOSIT AND OTHER FUNDS
AND INSTRUMENTS DELIVERED INTO ESCROW IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT.
SELLER AND BUYER AGREE THAT THE DUTIES OF THE TITLE COMPANY
HEREUNDER ARE PURELY MINISTERIAL IN NATURE AND SHALL BE EXPRESSLY LIMITED TO THE
MATTERS SET FORTH IN THIS AGREEMENT.
TITLE COMPANY SHALL NOT BE RESPONSIBLE FOR
ANY INTEREST ON THE DEPOSIT EXCEPT AS IS ACTUALLY EARNED, OR FOR THE LOSS OF ANY
INTEREST RESULTING FROM THE WITHDRAWAL OF THE DEPOSIT PRIOR TO THE DATE INTEREST
IS POSTED THEREON.
2
Title Company shall execute this Agreement for the purpose of being bound by the
provisions of this Agreement directing action by the Title Company.
Escrow
Holder shall be the "Reporting Person" pursuant to Internal Revenue Code
Section 6045(e) with respect to the transaction contemplated by this Agreement.
3.
BUYER'S INVESTIGATION
3.1
SCOPE OF INVESTIGATION
Buyer shall have a period commencing on the Effective Date and ending on
May 16, 2005 (the "Investigation Period"), to review and approve all matters
relating to the Property, including the following matters:
(A)
ALL MATTERS RELATING TO TITLE TO