EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT
TO SELLER CAUSED BY THE BREACH BY PURCHASER UNDER THIS AGREEMENT AND THE FAILURE
OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE
AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF PURCHASER'S BREACH
OR DEFAULT.
9.3
DISPOSITION OF DEPOSIT.
IN THE EVENT THE TRANSACTION CONTEMPLATED
BY THIS AGREEMENT SHALL CLOSE, THE DEPOSIT SHALL BE APPLIED AS A PARTIAL PAYMENT
OF THE PURCHASE PRICE.
10.
ESCROW PROVISIONS.
10.1
ESCROW.
ESCROWEE SHALL HOLD THE DEPOSIT IN ESCROW AND NOT IN TRUST
IN A SPECIAL INTEREST BEARING ACCOUNT.
ESCROWEE SHALL PAY THE DEPOSIT TO SELLER
AT THE CLOSING OR OTHERWISE IN ACCORDANCE WITH THIS AGREEMENT.
IF, PRIOR TO THE
CLOSING, 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
FIVE (5) 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 (A) A NOTICE FROM THE OBJECTING PARTY WITHDRAWING THE
OBJECTION, OR (B) A NOTICE SIGNED BY BOTH PARTIES DIRECTING DISPOSITION OF THE
DEPOSIT, OR (C) A JUDGMENT OR ORDER OF A COURT OF COMPETENT JURISDICTION
10.2
TERMS.
THE PARTIES FURTHER AGREE THAT:
(I)
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
ESCROWEE WITHOUT
17
VERIFYING THE TRUTH OR ACCURACY OF ANY SUCH NOTICE, DEMAND, CERTIFICATE,
SIGNATURE, INSTRUMENT OR OTHER DOCUMENT;
(II)
ESCROWEE SHALL NOT BE BOUND IN ANY WAY BY ANY OTHER CONTRACT OR
UNDERSTANDING BETWEEN THE PARTIES HERETO, WHETHER OR NOT ESCROWEE HAS KNOWLEDGE
THEREOF OR CONSENTS THERETO UNLESS SUCH CONSENT IS GIVEN IN WRITING;
(III)
ESCROWEE'S SOLE DUTIES AND RESPONSIBILITIES SHALL BE TO HOLD AND
DISBURSE THE DEPOSIT IN ACCORDANCE WITH THIS AGREEMENT; PROVIDED, HOWEVER, THAT
ESCROWEE SHALL HAVE NO RESPONSIBILITY FOR THE CLEARING OR COLLECTION OF THE
CHECK REPRESENTING THE DEPOSIT;
(IV)
ESCROWEE SHALL NOT BE LIABLE FOR ANY ACTION TAKEN OR OMITTED BY
ESCROWEE IN GOOD FAITH AND BELIEVED BY ESCROWEE TO BE AUTHORIZED OR WITHIN ITS
RIGHTS OR POWERS CONFERRED UPON IT BY THIS AGREEMENT, EXCEPT FOR DAMAGE CAUSED
BY GROSS NEGLIGENCE OF WILLFUL MISCONDUCT OF ESCROWEE;
(V)
UPON THE DISBURSEMENT OF THE DEPOSIT IN ACCORDANCE WITH THIS
AGREEMENT, ESCROWEE SHALL BE RELIEVED AND RELEASED FROM ANY LIABILITY UNDER THIS
AGREEMENT;
(VI)
ESCROWEE MAY RESIGN AT ANY TIME UPON AT LEAST FIVE (5) DAYS PRIOR
WRITTEN NOTICE TO THE PARTIES HERETO.
IF, PRIOR TO THE EFFECTIVE DATE OF SUCH
RESIGNATION, THE PARTIES HERETO SHALL ALL HAVE APPROVED, IN WRITING, A SUCCESSOR
ESCROW