(II)
UPON CLOSING, THE PROPERTY CLOSING SHALL BE CONSUMMATED, THE
LEASEBACK LEASE SHALL BE MUTUALLY EXECUTED AND DELIVERED AND BE IN FULL FORCE
AND EFFECT, AND SELLER'S LEASEHOLD INTEREST IN AND TO
24
THE PROPERTY PURSUANT TO THE LEASEBACK LEASE SHALL BE SENIOR TO ANY MORTGAGE
FINANCING (OR, SUBJECT TO THE TERMS OF SECTION 13 HEREOF, A SNDA SHALL BE
DELIVERED AND RECORDED), VALID, ENFORCEABLE AND INSURABLE BY THE ESCROWEE
PURSUANT TO A STANDARD LEASEHOLD TITLE INSURANCE POLICY, AT STANDARD RATES,
SUBJECT ONLY TO THOSE EXCEPTIONS AND CONDITIONS REASONABLY ACCEPTABLE TO SELLER.
(III)
NONE OF THE REPRESENTATIONS AND WARRANTIES OF PURCHASER IN THIS
AGREEMENT SHALL HAVE, SINCE THE ESCROW CLOSING, BECOME UNTRUE OR INCORRECT IN
ANY MATERIAL RESPECT.
(IV)
THE EXISTING LEASE, TOGETHER WITH (I) MEMORANDUM OF LEASE WITH AN
OPTION TO PURCHASE, DATED FEBRUARY 9, 1998, BETWEEN LESSOR AND SELLER, AND
(II) OPTION AGREEMENT, DATED FEBRUARY 14, 1997, BETWEEN LESSOR AND SELLER, SHALL
BE, EFFECTIVE SIMULTANEOUS WITH THE CLOSING, TERMINATED AND THEREAFTER BE NULL
AND VOID, AND THAT SELLER AND PURCHASER (INCLUDING PURCHASER AS "LESSOR" AND/OR
"LESSEE" THEREUNDER, AS APPLICABLE) SHALL EXECUTE SUCH DOCUMENTS AND OTHER
INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE SAME.
The foregoing conditions under this Section 18(d) are for the benefit of Seller,
and Seller may, in its sole discretion, waive any or all of such conditions and
close title under this Agreement without any increase in, abatement of, or
credit against, the Purchase Price.
19.
DEPOSIT.
(A)
THE DEPOSIT SHALL BE DEPOSITED WITH THE ESCROWEE AND SHALL BE HELD
IN ESCROW PURSUANT TO THE TERMS OF THIS AGREEMENT.
ESCROWEE SHALL CAUSE THE
DEPOSIT TO BE DEPOSITED INTO AN INTEREST BEARING ACCOUNT.
ESCROWEE SHALL PAY
THE DEPOSIT TO SELLER AT THE CLOSING UPON THE CONSUMMATION THEREOF OR OTHERWISE
TO SELLER OR PURCHASER IN ACCORDANCE WITH THIS AGREEMENT.
THE DEPOSIT SHALL NOT
BE DELIVERED TO THE CLOSING AGENT, BUT RATHER ADMINISTERED SEPARATELY THROUGH
THIS AGREEMENT.
IF EITHER PARTY MAKES A DEMAND UPON ESCROWEE FOR DELIVERY OF
THE DEPOSIT, ESCROWEE SHALL GIVE NOTICE TO THE OTHER PARTY OF SUCH DEMAND.
IF A
NOTICE OF OBJECTION TO THE PROPOSED PAYMENT IS NOT RECEIVED FROM THE OTHER PARTY
WITHIN SEVEN (7) BUSINESS DAYS AFTER THE GIVING OF NOTICE BY ESCROWEE, ESCROWEE
IS HEREBY AUTHORIZED TO DELIVER THE DEPOSIT TO THE PARTY WHO MADE THE DEMAND.
IF ESCROWEE RECEIVES A NOTICE OF OBJECTION WITHIN SAID PERIOD, THEN ESCROWEE
SHALL CONTINUE TO HOLD THE DEPOSIT AND THEREAFTER PAY IT TO THE PARTY ENTITLED
WHEN ESCROWEE RECEIVES (I) A NOTICE FROM THE OBJECTING PARTY WITHDRAWING THE
OBJECTION, OR (II) A NOTICE SIGNED BY BOTH PARTIES DIRECTING DISPOSITION OF THE
DEPOSIT OR (III) A JUDGMENT OR ORDER OF A COURT OF COMPETENT JURISDICTION.
(B)
THE PARTIES FURTHER AGREE THAT:
(I)
EXCEPT FOR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, ESCROWEE
SHALL BE PROTECTED IN RELYING UPON THE ACCURACY, ACTING IN RELIANCE UPON THE
CONTENTS, AND ASSUMING THE GENUINENESS OF ANY NOTICE, DEMAND, CERTIFICATE,
SIGNATURE, INSTRUMENT OR OTHER DOCUMENT WHICH IS GIVEN TO