Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement. (b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement. (c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays. (d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so. (e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement. (f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent. (g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it. (h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder. (i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction. (j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof. (k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question. (l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows: (i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and (ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above. (m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). (n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Sources: Escrow Agreement (maniaTV Inc.), Escrow Agreement (Canfield Medical Supply, Inc.)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Purchaser and the Company acknowledge and agree that the Escrow Agent (i) shall not be required to inquire into whether the Purchaser, the Company or any other party is entitled to receipt of any Document or all or any portion of the Escrowed Payment; (ii) shall not be called upon to construe or review any Document or any other document, instrument or agreement entered into in connection therewith; (iii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (v) may assume that any person purporting to give notice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so; (vi) shall not be responsible for the identity, authority or rights of any person, firm or company executing or delivering or purporting to execute or deliver this Agreement or any Document or any funds deposited hereunder or any endorsement thereon or assignment thereof; (vii) shall not be under any duty to give the Escrow Funds property held by it Escrow Agent hereunder any greater degree of care than it Escrow Agent gives its own similar property property; and shall not (viii) may consult counsel satisfactory to Escrow Agent (including, without limitation, Loeb & Loeb, LLP or such other counsel of Escrow Agent's choosing), the opinion of such counsel to be required to invest full and complete authorization and protection in respect of any funds held action taken, suffered or omitted by Escrow Agent hereunder except as directed pursuant to Section 1 in good faith and in accordance with the opinion of this Escrow Agreementsuch counsel.
(b) The Purchaser and the Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Purchaser and the Company hereby, jointly and severally, indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives from and against any and all actions taken or omitted to be taken by Escrow Agent or any of them hereunder and any and all claims, losses, liabilities, costs, damages and expenses suffered and/or incurred by the Escrow Agent arising in any manner whatsoever out of the transactions contemplated by this Agreement and/or any transaction related in any way hereto, including the fees of outside counsel and other costs and expenses of defending itself against any claims, losses, liabilities, costs, damages and expenses arising in any manner whatsoever out the transactions contemplated by this Agreement and/or any transaction related in any way hereto, except for such claims, losses, liabilities, costs, damages and expenses incurred by reason of the Escrow Agent's gross negligence or willful misconduct. The Escrow Agent shall owe a duty only to the Purchaser and the Company under this Agreement and to no other person.
(c) The Purchaser and the Company shall jointly and severally reimburse the Escrow Agent for its reasonable out-of-pocket expenses (including counsel fees (which counsel may be Loeb & Loeb LLP or such other counsel of the Escrow Agent's choosing) incurred in connection with the performance of its duties and responsibilities hereunder, which shall not (subject to Section 4.1(b)) exceed $2,000.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) business days prior written notice of resignation to the Purchaser and the Company. Prior to the effective date of resignation as specified in such notice, the Purchaser and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Documents and the Escrowed Payment to a substitute Escrow Agent selected by the Purchaser and the Company. If no successor Escrow Agent is named by the Purchaser and the Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and deposit the Documents and the Escrowed Payment with the clerk of any such court and/or otherwise commence an interpleader or similar action for a determination of where to deposit the same.
(e) The Escrow Agent does not have and will not have any interest in the Documents and the Escrowed Payment, but is serving only as escrow agent, having only possession thereof.
(f) The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be Loeb & Loeb, LLP or such other counsel of the Escrow Agent's choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except to the extent any such liability arose from its own willful misconduct or gross negligence.
(g) This Escrow Agreement expressly sets forth all exclusively the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No thereto and no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon permitted to advise act as counsel for the Purchaser or the Company, as the case may be, in any party dispute as to the wisdom disposition of the Documents and the Escrowed Payment, in selling any other dispute between the Purchaser and the Company, whether or retaining or taking or refraining from any action with respect not the Escrow Agent is then holding the Documents and/or the Escrowed Payment and continues to any securities or other property deposited act as the Escrow Agent hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering provisions of this Section 4.1 shall survive the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties termination of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedthis Agreement.
Appears in 2 contracts
Sources: Funds Escrow Agreement (Windswept Environmental Group Inc), Funds Escrow Agreement (National Investment Managers Inc.)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give hereby accepts the Escrow Funds held agency established by it hereunder any greater degree of care than it gives its own similar property this Agreement and shall not perform the same upon the terms and conditions herein set forth, by all of which Buyer and the Company shall be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the bound. The duties of the Escrow Agent with respect to hereunder shall be purely ministerial. The Escrow Agent shall not have any duties or responsibilities except those expressly set forth herein, and all matters pertinent hereto. No no implied duties covenants or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent , whose duties and obligations shall not be bound determined solely by the express provisions of any other agreement among the parties hereto except this Escrow Agreementhereof.
(cb) The Escrow Agent shall not (i) be liableliable for any action taken or suffered or omitted to be taken by it in good faith in the belief that any documents or any signatures are genuine or properly authorized, (ii) be responsible for any failure on the part of the Company or Buyer or any predecessor Escrow Agent to comply with any of its representations, warranties, covenants or agreements contained in this Agreement, or (iii) be liable for any act or omission in connection with this Agreement, except in each case for its own gross negligencenegligence or willful misconduct. The Escrow Agent is hereby irrevocably authorized to, willful misconduct or breach of and shall, (A) act in accordance with this Escrow Agreement, and, except with respect and (B) make the releases and deliveries as provided in Section 2. Subject to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly hereby is authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel accept instructions with respect to any matter relating to this the performance of its duties hereunder from Buyer and the Company, and the Escrow Agreement and Agent shall not be liable for any action taken or suffered or omitted to be taken by it in good faith in accordance with such advicethe instructions of Buyer and the Company, except for its own gross negligence or willful misconduct. However, if Escrow Agent incurs reasonable legal fees and other costs in connection with its successful defense of a claim of gross negligence or willful misconduct, the Escrow Agent shall be indemnified for such fees.
(c) The Escrow Agent may execute and exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its officers, agents or employees, and the Escrow Agent shall not be answerable or accountable for any action constituting taken, default, neglect or misconduct of any such officer, agent or employee, except for the gross negligence, negligence or willful misconduct of the Escrow Agent or any of them. The Escrow Agent shall not be under any obligation or duty to institute, appear in, or defend any action, suit or proceeding in respect hereof, unless first indemnified to its reasonable satisfaction, but this provision shall not affect the power of the Escrow Agent to take such action as the Escrow Agent may consider proper, whether with or without such indemnity. Notwithstanding anything in this Agreement that may be to the contrary, the Escrow Agent shall have no liability hereunder to any of the other parties for complying in good faith with any judgment or order of a breach court of competent jurisdiction. The Escrow Agent shall notify Buyer and the Company of any claim made or action, suit or proceeding instituted against it arising out of or in connection with this Agreement.
(d) Buyer and the Company from time to time shall perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further acts, instruments and assurances as may be reasonably required by the Escrow Agent in order to enable it to carry out or perform its duties under this Agreement.
(e) The Company and Buyer jointly and severally agree to reimburse the Escrow Agent for its reasonable expenses, including taxes and governmental charges of any kind and nature, incurred by the Escrow Agent hereunder; and further jointly and severally agree to indemnify the Escrow Agent and save it harmless against any and all losses, liabilities, damages and expenses and for anything done, suffered or omitted by the Escrow Agent in the execution of its duties and powers hereunder, except as a result of the Escrow Agent's gross negligence or willful misconduct. As between the Company and Buyer, any amounts payable to the Escrow Agent pursuant to the preceding sentence shall be payable by Buyer.
(f) The Escrow Agent is serving may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation a result of the Escrow Agent.
(g) The Escrow Agent makes no representation as 's own gross negligence or willful misconduct), after giving prior notice to the validityCompany and Buyer, value, genuineness or such resignation and discharge to be effective as hereinafter provided. With the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation prior consent of the Escrow Agent will take effect on the earlier of Company (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed), Buyer may remove the Escrow Agent upon at least 10 days' prior notice, and the Escrow Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder (except as aforesaid), such removal and discharge to be effective as hereinafter provided. No such resignation or removal shall take effect until a new escrow agent which Buyer and the Company shall have approved in writing (such approval not to be unreasonably withheld or delayed) shall have been appointed and shall have agreed to assume the Escrow Agent's duties hereunder, as hereinafter provided. After such a new escrow agent shall accept such appointment in writing, such new escrow agent shall be vested with the same powers, rights, property, duties and responsibilities as if it had been originally named herein as Escrow Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done and shall be legally and validly executed and delivered by the resigning or removed Escrow Agent.
(g) Notwithstanding anything in this Agreement that may be to the contrary: (i) if the Escrow Agent shall receive notice advising that litigation in connection with the Escrowed Property, the Tender Offer Agreement or this Agreement has been commenced, the Escrow Agent may deposit the Escrowed Property with the Clerk of the Court in which said litigation is pending; or (ii) the Escrow Agent may deposit the Escrowed Property in a court of competent jurisdiction and commence an action for interpleader, the costs thereof to be borne jointly and severally by Buyer and the Company. Upon the occurrence of any of the foregoing events set forth in the preceding sentence, the Escrow Agent shall be automatically released of and from all liability hereunder.
(h) Nothing herein shall preclude the Escrow Agent from acting in any other capacity for Buyer, the Company or any of their respective affiliates.
(i) Escrow Agent may consult with outside legal counsel at the reasonable expense of [Buyer] as to any matter relating to this Agreement.
Appears in 2 contracts
Sources: Escrow Agreement (FMCC Acquisition Corp), Escrow Agreement (First of Michigan Capital Corp)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be have any liability to any of the parties to this Agreement or to any third party arising out of its services as Escrow Agent under any duty to give this Agreement, except for damages directly resulting from the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow AgreementAgent's gross negligence or willful misconduct.
(b) This Escrow Agreement expressly sets forth all The Company and the duties of Investors jointly and severally shall indemnify the Escrow Agent and hold it harmless against any loss, liability, damage or expense (including reasonable attorneys' fees) that the Escrow Agent may incur as a result of acting as escrow agent under this Agreement, except for any loss, liability, damage or expense arising from its own gross negligence or willful misconduct. As between the Company and the Investors, such obligations shall be borne equally by the Company and the Investors. For this purpose, the term "attorneys' fees" includes fees payable to any counsel retained by the Escrow Agent in connection with its services under this Agreement and, with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into matter arising under this Escrow Agreement against as to which the Escrow Agent. The Agent performs legal services, if and to the extent that the Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreementitself is a law firm, its standard hourly rates and charges then in effect.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder under this Agreement without being required to determine the authenticity of, or the correctness of any fact stated therein in, that document and irrespective of any facts the Escrow Agent may know or the proprieties, validity or the service thereofbe deemed to know in any other capacity. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give any notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, this Agreement has been duly authorized to do so.
(ed) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to shall have no duties or responsibilities except those expressly set forth in this Agreement. The Escrow Agreement and Agent shall not have any obligations arising out of or be liable bound by the provisions of any other agreement, written or oral, including, but not limited to, the Securities Purchase Agreement.
(e) All of the Escrow Agent's rights of indemnification provided for any action taken in this Agreement shall survive the resignation of the Escrow Agent, its replacement by a successor Escrow Agent, its delivery or omitted deposit of the Escrow Deposit in accordance with such advicethis Agreement, except for any action constituting gross negligence, willful misconduct or a breach the termination of this Escrow Agreement, and any other event that occurs after this date.
(f) The Escrow Agent is serving as escrow holder only and has shall have no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force responsibility with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation sufficiency of the Escrow Agentarrangements contemplated by this Agreement to accomplish the intentions of the parties.
(g) The Investors and the Placement Agent acknowledge that they know that the Escrow Agent makes no representation as has represented the Company in connection with the Securities Purchase Agreement and this Agreement and that it may continue to represent the validityCompany in that connection and in connection with the transactions contemplated by those agreements, valueincluding, genuineness or the collectibility but not limited to, in connection with any disputes that may arise under either of any security or other documents or instrument held by or delivered to it.
(h) those agreements. The Escrow Agent shall not be called upon to advise precluded from or restricted from representing the Company or any party of its affiliates or otherwise acting as attorneys for the Company or any of its affiliates in any matter, including, but not limited to, any court proceeding or other matter related to the wisdom in selling Securities Purchase Agreement, this Agreement or retaining the transactions contemplated by the Securities Purchase Agreement, or taking this Agreement or refraining from any action the Escrow Deposit, whether or not there is a dispute between the Investors and the Company with respect to any securities or other property deposited hereunder.
(i) such matter. The Escrow Investors and the Placement Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds irrevocably consent to any successor Escrow Agent jointly designated by the other parties hereto in writing, such representation and waive any conflict or appearance of conflict with respect to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdictionsuch representation.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Sources: Escrow Agreement (Sunset Suits Holdings, Inc.), Escrow Agreement (Fashion Tech International Inc)
Concerning the Escrow Agent. (a) 3.1 The Escrow Agent agrees to perform all of the duties hereinbefore set forth which are applicable to it unless prohibited by a court of competent jurisdiction.
3.2 The Pledgor will pay from time to time the reasonable fees and expenses of the Escrow Agent in connection with the performance of its duties hereunder and in connection with any proceedings in which it is involved as a result of agreeing to be a party to this Agreement.
3.3 The Pledgee and the Pledgor, jointly and severally, will indemnify and save harmless the Escrow Agent from and against all other claims, demands, damage, loss and expense arising out of the good faith performance of its duties hereunder. This provision shall survive any resignation or removal of the Escrow Agent hereunder and any termination of this Agreement. The Escrow Agent shall not be under any duty obligation to give prosecute or to defend any action or suit which, in the Escrow Funds held by opinion of its counsel, may involve it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except in expense or liability, unless the parties hereto shall, so often as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of required, furnish the Escrow Agent with respect satisfactory indemnity and funding against such expense or liability.
3.4 Except as otherwise expressly provided herein, the Escrow Agent shall deal with the Escrow Documents from time to any and all matters pertinent hereto. No implied duties time only in accordance with the written instructions of the Pledgor.
3.5 The Escrow Agent will have no responsibility or obligations shall be read into this Escrow Agreement against in respect of the Escrow Agent. The Documents except the duty to exercise such care in the safekeeping thereof that a reasonably prudent person would exercise in comparable circumstances.
3.6 Except as expressly set out in this Agreement, the Escrow Agent shall not be bound by any notice of a claim or demand with respect thereto, or any waiver, modification, amendment, termination or rescission of thereof unless received by it in writing and signed by both the provisions of any other agreement among Pledgor and the parties hereto except Pledgee and unless it has given its written consent thereto if its duties or obligations under this Escrow AgreementAgreement are affected.
(c) 3.7 The Escrow Agent shall may rely and will be protected in acting on any written notice, request, waiver, consent, receipt, election, declaration or any paper or document furnished to it and executed, whether or not under the seal, by any party hereto not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained, which it in good faith believes to be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly genuine and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event will not be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity of signatures or the correctness power and authority of any fact stated therein signatory to execute documents or to verify the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt accuracy of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do socontained therein.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Sources: Escrow Agreement (Continental Minerals Corp), Escrow Agreement (Continental Minerals Corp)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 5 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f6(f) and Section 4(c6(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c6(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 1,000 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Sources: Escrow Agreement (Zen Raku Enterprises Inc), Escrow Agreement (Promap Corp)
Concerning the Escrow Agent. (a) The fee of the Escrow Agent for its services provided hereunder shall be its customary fees for such services, payable on delivery of the escrow. The payment of all fees, disbursements, expenses and advances charged by the Escrow Agent shall not be under any duty to give borne by the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder Purchaser except as directed pursuant to set forth in Section 1 of this Escrow Agreement2(d) above.
(b) This The Escrow Agreement expressly sets forth all Agent may resign and be discharged from its duties hereunder at any time by giving notice of such resignation to both the duties Stockholder and the Purchaser specifying a date not less than ten business days following the date of such notice when such resignation shall take effect. Upon such notice, a successor escrow agent, which shall be a national bank, shall be selected by the Purchaser, subject to the reasonable approval of the Stockholder, such successor escrow agent to become the Escrow Agent with respect hereunder upon the resignation date specified in such notice. If the Purchaser and the Stockholder are unable to any and all matters pertinent hereto. No implied duties or obligations agree upon a successor escrow agent within ten business days after the date of such notice, the Escrow Agent shall be read into this Escrow Agreement against the Escrow Agententitled to appoint its successor, which shall be a national bank. The Escrow Agent shall not continue to serve until its successor accepts the escrow and receives the Share Documents. The Purchaser, subject to the reasonable approval of the Stockholder, may at any time substitute a new Escrow Agent, which shall be bound a national bank, by giving notice thereof to the provisions of any other agreement among the parties hereto except this Escrow AgreementAgent then acting.
(c) The Escrow Agent undertakes to perform only such duties as are specifically set forth herein and may conclusively rely upon, and shall not be liable, except for its own gross negligence, willful misconduct protected in acting or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) refraining from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitationacting on, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, written notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice have been signed or advice, accept receipt of presented by the proper party or execute any document, or make any statement in connection with the provisions hereof, has been parties duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
. Notwithstanding anything to the contrary in this Escrow Agreement, where Escrow Agent is required to take action upon delivery by the Stockholder or the Purchaser (kor both of them) In the event of any disagreement between the other parties hereto resulting in adverse claims a notice, certificate or demands being made in connection with instructions to the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderAgent, the Escrow Agent shall not be entitled obligated to retain take any action until the appropriate party (or parties) has acted by delivering the certificate, notice or instructions to the Escrow Funds until Agent (none of which shall be binding upon the Escrow Agent unless in writing) as to the action to be taken hereunder indicating in writing that a copy of such certificate, notice or instructions has been delivered to the other party. The Stockholder and the Purchaser acknowledge that the Escrow Agent is bound only by the terms of this Escrow Agreement and that the Escrow Agent shall have not be required to use its discretion with respect to any matter that is the subject of this Escrow Agreement or with respect to instructions received under this Escrow Agreement.
(id) a final nonappealable order The Escrow Agent shall not be liable for any action or omission in good faith believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for action or omission in good faith and in accordance with advice of a court of competent jurisdiction directing delivery outside counsel (which counsel may be of the Escrow Funds Agent's own choosing), and shall not be liable for any mistakes of fact or error of judgment or for any acts or omissions of any kind unless caused by its own willful misconduct or gross negligence.
(iie) Except as set forth in the next sentence, the Purchaser and its respective successors and assigns will indemnify and hold harmless Escrow Agent against any and all losses, claims, damages, liabilities and expenses, including reasonable costs of investigation, counsel fees and disbursements that may be imposed on Escrow Agent or incurred by Escrow Agent in connection with its acceptance of appointment or the performance of its duties under this Escrow Agreement, including any litigation arising from this Escrow Agreement or involving its subject matter, except as a written agreement executed result of Escrow Agent's own gross negligence or willful misconduct. The Stockholder and its respective successors and assigns will indemnify and hold harmless Escrow Agent against any and all losses, claims, damages, liabilities and expenses, including reasonable costs of investigation, counsel fees and disbursements that may be imposed on Escrow Agent or incurred by Escrow Agent in connection with or arising out of Section 2(d) of this Escrow Agreement, including any litigation arising therefrom or involving its subject matter, except as a result of Escrow Agent's own gross negligence or willful misconduct. Notwithstanding the other parties preceding two sentences, if a court finally determines that any party hereto directing delivery of the Escrow Fundsacted unreasonably in failing to give a notice or acknowledgment hereunder, in which event such party shall indemnify the Escrow Agent pursuant to this clause (e) and the other party hereto shall disburse be relieved of any obligation to indemnify the Escrow Funds in accordance with such order or agreement. Any court order referred Agent pursuant to in this clause (ie) above shall be accompanied by a legal opinion of counsel for to the presenting party satisfactory extent that such failure to act reasonably causes the Escrow Agent to the effect that said court order is final incur any losses, claims, damages, liabilities and nonappealable. The Escrow Agent shall act on such court order expenses, including reasonable costs, fees and legal opinions without further question.
(l) Notwithstanding anything disbursements referred to the contrary contained herein, in the event first sentence of any dispute between the parties hereto as to the facts of defaultthis clause (e), the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, for which the Escrow Agent is instructed as follows:
entitled to indemnification pursuant to this clause (i) That it e). Such indemnity shall be under no obligation to act, except as and to survive the extent directed under process termination or order discharge of court, this Escrow Agreement or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights resignation of the Escrow Agent under Section 4(c) aboveAgent.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Sources: Stockholder Escrow Agreement (BRW Steel Corp), Stockholder Escrow Agreement (BRW Steel Corp)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrow Funds Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct, and, except with respect to claims based upon such gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds cash held by it hereunder in good faith, in accordance with the terms hereof, including, including without limitation, limitation any liability for any delays (not resulting from its gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct) in the investment or reinvestment of the Escrow FundsEscrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume assume, if in good faith, that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunderonly. Any payments of income from this the Escrow Agreement Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax identification I.D., number certification certification, or nonresident non-resident alien certifications. This Section 4(fparagraph (f) and paragraph (c) of this Section 4(c) 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agentescrow agent) may at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign as by giving written notice to such by delivering effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Funds Agent shall deliver the Escrowed Property to any successor Escrow Agent escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdictionjurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent will shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which that is 30 days after the date of delivery delivery: (A) to the Escrow Agent of its written the other parties' notice of resignation termination or (B) to the other parties heretohereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor Escrow Agentescrow agent, the Escrow Agent's sole responsibility after that time shall be to safekeep keep the Escrow Funds Escrowed Property safe until receipt of a designation of successor Escrow Agent escrow agent or a joint written disposition instruction by the other parties hereto or a final any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrow FundsEscrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds Escrowed Property until the Escrow Agent shall have received (i) a final nonappealable and non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Funds Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrow FundsEscrowed Property, in which event the Escrow Agent shall disburse the Escrow Funds Escrowed Property in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealablenon-appealable. The Escrow Agent shall act on such court order and legal opinions opinion without further question.
(l) Notwithstanding anything As consideration for its agreement to the contrary contained herein, in the event of any dispute between the parties hereto act as to the facts of defaultEscrow Agent as herein described, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunderif herein set forth). In addition, the Company agrees to pay reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, prospectusesthe Registration Statement, the Prospectus, notices, reports and promotional materialsmaterial) which mentions the Escrow Agent's name or the rights, powers powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to such mention(s), which consent shall not be unreasonably withheld or delayedthe use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 2 contracts
Sources: Placement Agency Agreement (Sciclone Pharmaceuticals Inc), Placement Agency Agreement (Integramed America Inc)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by each of the Seller and FGC that:
(ai) The Escrow Agent shall not be under any duty to give the Escrow Funds Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of in this Escrow Agreement.
(bii) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(ciii) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of any representations, warranties or covenants contained in this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages damages, and expenses, including reasonable attorney's attorneys' fees and disbursements, arising out of of, and in connection with with, this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct) in the investment or reinvestment of the Escrow Escrowed Funds, or any loss of interest incident to any such delays.
(div) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument instrument, or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume assume, if in good faith, that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(ev) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(fvi) The Escrow Agent does not have any interest in the Escrowed Funds deposited hereunder, but is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunderonly. Any payments of income from this the Escrow Agreement Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(fparagraph (vi) and Section 4(cparagraph (iii) of this Article V shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(gvii) The Escrow Agent makes no representation as to the validity, value, genuineness genuineness, or the collectibility of any security or other documents or instrument held by by, or delivered to to, it.
(hviii) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(iix) The Escrow Agent (and any successor Escrow Agentescrow agent) may at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by FGC and the Seller or at any time may resign as by giving written notice to such by delivering effect to FGC and the Seller. Upon any such termination or resignation, the Escrow Funds Agent shall deliver the Escrowed Property to any successor Escrow Agent escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdictionjurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent will shall take effect on the earlier of (iA) the appointment of a successor (including a court of competent jurisdiction) or (iiB) the day which that is 30 days after the date of delivery delivery: (1) to the Escrow Agent of its written the other parties' notice of resignation termination or (2) to the other parties heretohereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor Escrow Agentescrow agent, the Escrow Agent's sole responsibility after that time shall be to safekeep keep the Escrow Funds Escrowed Property safe until receipt of a designation of successor Escrow Agent escrow agent or a joint written disposition instruction by the other parties hereto or a final an enforceable order of a court of competent jurisdiction.
(jx) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kxi) In the event of any disagreement among or between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow FundsEscrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds Escrowed Property until the Escrow Agent shall have received (iA) a final nonappealable and non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Funds Escrowed Property or (iiB) a written agreement executed by the other parties hereto directing delivery of the Escrow FundsEscrowed Property, in which event the Escrow Agent shall disburse the Escrow Funds Escrowed Property in accordance with such order or agreement. Any court order referred to in clause (iA) above shall be accompanied by a legal opinion of by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealablenon-appealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(lxii) Notwithstanding anything As consideration for its agreement to the contrary contained herein, in the event of any dispute between the parties hereto act as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it herein described, FGC shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent fees determined in accordance with the terms set forth on Exhibit A hereto (and made a part of this Escrow Agreement as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunderif herein set forth). In addition, FGC and the Company agrees Seller agree to pay reimburse the Escrow Agent for all reasonable expenses, disbursements disbursements, and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses expenses, and disbursements of its counsel)) and to share equally the costs thereof.
(nxiii) No printed publicly distributed material or other matter in any language (including, without limitation, prospectuses, notices, reports notices and promotional materialsreports) which mentions the Escrow Agent's name or the rights, powers powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedthereto.
Appears in 2 contracts
Sources: Indemnity Escrow Agreement (Family Golf Centers Inc), Escrow Agreement (Family Golf Centers Inc)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 5 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f6(f) and Section 4(c6(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c6(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Sources: Escrow Agreement (Canfield Medical Supply, Inc.), Escrow Agreement (Canfield Medical Supply, Inc.)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the Escrow Funds property held by it Escrow Agent hereunder any greater degree of care than it Escrow Agent gives its own similar property property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be required liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to invest be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any funds held of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder except and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as directed pursuant Escrow Agent hereunder by giving five (5) days prior written notice of resignation to Section 1 the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(bf) This Escrow Agreement expressly sets forth all exclusively the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No thereto and no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation shall be permitted to act as counsel for the Subscriber in any dispute as to the validitydisposition of the Company Documents and Subscriber Documents, valuein any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, genuineness whether or not the collectibility of any security or other documents or instrument held by or delivered Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to itact as the Escrow Agent hereunder.
(h) The Escrow Agent provisions of this Section 4.1 shall not be called upon to advise any party as to survive the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties termination of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedthis Agreement.
Appears in 2 contracts
Sources: Subscription Agreement (Renegade Venture Nev Corp), Subscription Agreement (Renegade Venture Nev Corp)
Concerning the Escrow Agent. (a) Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation the Purchase Agreement, other than with respect to the definitions of certain terms used herein, which definitions are set forth in this Escrow Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility or duty to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrow Funds held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all in the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent’s gross negligence or willful misconduct (as finally adjudicated by a court of competent jurisdiction). No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for any indirect, punitive, special, incidental or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any other agreement among such loss or damage and regardless of the parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, except for its own gross negligencesecurities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, willful misconduct securities intermediary or breach of this Escrow Agreement, and, except with respect other subescrow agent has to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, except to the extent that such action or omission of any book-entry depository, securities intermediary or other parties hereto shall jointly and severally indemnify and hold harmless subescrow agent was caused by the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment ’s own gross negligence or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach (as finally adjudicated by a court of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delayscompetent jurisdiction).
(d) The Escrow Agent shall be entitled to rely upon any orderis hereby authorized, judgment, certification, demand, notice, instrument in making or other writing delivered to it hereunder without being required to determine the authenticity or the correctness disposing of any fact stated therein investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as a subagent of the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon or for any instrument third person or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do sodealing as principal for its own account.
(e) The Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrow Property (or take other action that may act pursuant be called for hereunder to be taken by the advice Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Agreement in good form, or (ii) passage of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken the applicable time period (or omitted in accordance with such adviceboth, except for any action constituting gross negligence, willful misconduct or a breach as applicable under the terms of this Escrow Agreement), as the case may be.
(f) The Escrow Agent is serving as escrow holder only Unless and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as except to the validityextent otherwise expressly set forth herein, valueall deposits and payments hereunder, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as pursuant to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor terms hereof (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory limitation all payments to the Escrow Agent pursuant to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(lSection 7 below) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) aboveU.S. dollars.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Mimecast LTD)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreementhereunder.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement by or among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto Company and NCPS shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f5(f) and Section 4(c5(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of of
(i) the appointment of a successor (including a court of competent jurisdiction) or or
(ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received received
(i) a final nonappealable non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or or
(ii) a written agreement executed by the other parties party[ies] hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealablenon-appealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, Clerk of the District Court of the City and County of DenverC▇▇▇▇▇▇▇ County, State of ColoradoKentucky, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c5(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunderdescribed herein, a fee of $1,500 as payment set forth in full for the services to be rendered by the Escrow Agent hereundernumbered paragraph 6 below. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectusesOfferings, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the any other parties party hereto or on such parties' party's behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Sources: Escrow Agreement (REITless Impact Opportunity Zone Strategies LLC), Escrow Agreement (REITless Impact Opportunity Zone Strategies LLC)
Concerning the Escrow Agent. (a) Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation the Security Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for making inquiry as to or determining the genuineness, accuracy or validity thereof, or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel. Documents and written materials referred to in this Section 9(a) include, without limitation, e-mail and other electronic transmissions capable of being printed, whether or not they are in fact printed; and any such e-mail or other electronic transmission may be deemed and treated by the Escrow Agent as having been signed or presented by a person if it bears, as sender, the person’s e-mail address.
(b) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrow Funds held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all in the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent’s gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any other agreement among such loss or damage and regardless of the parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, except for its own gross negligencesecurities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, willful misconduct securities intermediary or breach of this Escrow Agreement, and, except with respect other subescrow agent has to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, except to the extent that such action or omission of any book-entry depository, securities intermediary or other parties hereto shall jointly and severally indemnify and hold harmless subescrow agent was caused by the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment ’s own gross negligence or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or in breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderis hereby authorized, judgment, certification, demand, notice, instrument in making or other writing delivered to it hereunder without being required to determine the authenticity or the correctness disposing of any fact stated therein investment permitted by this Agreement, or in carrying out any sale of the proprietiesEscrow Property permitted by this Agreement, validity to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as a subagent of the service thereof. The Escrow Agent may act in reliance upon or for any instrument third person or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do sodealing as principal for its own account.
(e) The Escrow Agent may act pursuant Notwithstanding any term appearing in this Agreement to the advice of counsel with respect to any matter relating to this Escrow Agreement and contrary, in no instance shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms be required or obligated to distribute any Escrow Property (or take other action that may be called for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of hereunder to be taken by the Escrow Agent.
) sooner than two (g2) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
Business Days after (i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering it has received the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto applicable documents required under this Agreement in writinggood form, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing passage of the arbitrators applicable time period (or any third party contemplated herein both, as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability applicable under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(sthis Agreement), which consent shall not be unreasonably withheld or delayedas the case may be.
Appears in 1 contract
Concerning the Escrow Agent. (a) Each party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation the Reorganization Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder that might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting (or, if so requested, refraining from acting) upon and in accordance with any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrow Funds held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all in the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent's gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow AgentAgent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to * Confidential treatment has been requested for certain portions of this exhibit. The Omitted portions have been filed separately with the Commission. lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any other agreement among such loss or damage and regardless of the parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct have no more or breach less responsibility or liability on account of this any action or omission of any book-entry depository or securities intermediary employed by the Escrow Agreement, and, except with respect Agent than any such book-entry depository or securities intermediary has to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, except to the other parties hereto shall jointly and severally indemnify and hold harmless extent that such action or omission of any book-entry depository or securities intermediary was caused by the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment own gross negligence or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or in breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving at least 30 days' prior written notice of such resignation to Parent and the Stockholder specifying a date upon which such resignation shall take effect; PROVIDED, HOWEVER, that the Escrow Agent shall continue to serve until its successor accepts the Escrow Fund. Upon receipt of such notice, a successor escrow agent shall be entitled appointed by Parent and the Stockholder, such successor escrow agent to rely upon any orderbecome the Escrow Agent hereunder on the resignation date specified in such notice. If a written instrument of acceptance by a successor escrow agent shall not have been received by the Escrow Agent within 40 days after the giving of such notice of resignation, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The resigning Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt at the expense of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to Parent petition any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) jurisdiction for the appointment of a successor (including escrow agent. Parent and the Stockholder acting jointly, may at any time substitute a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its new escrow agent by giving 10 days' prior written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory thereof to the Escrow Agent to the effect that said court order is final then acting and nonappealable. The Escrow Agent shall act on by Parent paying all fees and expenses of such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Escrow Agreement (GHS Inc)
Concerning the Escrow Agent. (a) The a. Each party to this Agreement acknowledges and agrees that the Escrow Agent (i) shall not be under responsible for any duty of the agreements referred to give or described herein (including without limitation the Escrow Funds held by it hereunder any greater degree SPA), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of care than it gives such duties as are expressly and specifically set forth in this Make Good Agreement on its own similar property part to be performed, each of which is ministerial (and shall not be required construed to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(bbe fiduciary) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any in nature, and all matters pertinent hereto. No no implied duties or obligations of any kind shall be read into this Escrow Make Good Agreement against or on the Escrow Agent. The Escrow Agent shall not be bound by the provisions part of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the (iii) shall not be obligated to take any legal or other parties hereto action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall jointly have been furnished with acceptable indemnification, (iv) may rely on and severally indemnify and hold harmless the Escrow Agent shall be protected in acting or refraining from acting upon any written notice, instruction (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligencewire transfer instructions, willful misconduct whether incorporated herein or breach of this Escrow Agreement) provided in the investment or reinvestment of the Escrow Fundsa separate written instruction), or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderinstrument, judgmentstatement, certificationcertificate, demand, notice, instrument request or other writing delivered document furnished to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably and believed by it to be genuine and may assume that to have been signed or presented by the proper person, and shall have no responsibility to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any person purporting to give notice or advice, accept receipt of or execute any documentsignature appearing thereon), or make of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any statement instance shall be full and complete authorization and protection in connection respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the provisions hereof, has been duly authorized to do so.
(e) opinion or advice of such counsel. The Escrow Agent has acted as legal counsel for the Company and may continue to act pursuant as legal counsel for the Company from time to time, notwithstanding its duties as the Escrow Agent hereunder. The Buyers and all other parties to this Agreement consent to the advice Escrow Agent in such capacity as legal counsel for the Company and waive any claim that such representation represents a conflict of counsel with respect to any matter relating to interest on the part of the Escrow Agent. The Buyers understand that the Company and the Escrow Agent are relying explicitly on the foregoing provision in entering into this Escrow Agreement and Agreement.
b. The Escrow Agent shall not be liable to anyone for any action taken or omitted in accordance with such advice, to be taken by it hereunder except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation case of the Escrow Agent.
(g) The Escrow Agent makes ’s gross negligence or willful misconduct in breach of the terms of this Make Good Agreement. In no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent event shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor liable for indirect, punitive, special or consequential damage or loss (including a court of competent jurisdictionbut not limited to lost profits) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time whatsoever, even if the Escrow Agent has not received a designation been informed of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep likelihood of such loss or damage and regardless of the Escrow Funds until receipt form of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdictionaction.
(j) c. The Escrow Agent shall have no more or less responsibility for the contents or liability on account of any writing action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by the arbitrators Escrow Agent than any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except to the extent that such action or omission of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon book-entry depository, securities intermediary or other subescrow agent was caused by the contents thereofEscrow Agent’s own gross negligence or willful misconduct in breach of this Make Good Agreement.
(k) In the event d. The Escrow Agent is hereby authorized, in making or disposing of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fundsinvestment permitted by this Make Good Agreement, or in carrying out any sale of the event that Escrow Property permitted by this Make Good Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as a subagent of the Escrow Agent or for any third person or dealing as principal for its own account.
e. Notwithstanding any term appearing in good faith is this Make Good Agreement to the contrary, in doubt as to what action it should take hereunder, no instance shall the Escrow Agent shall be entitled required or obligated to retain distribute any Escrow Property (or take other action that may be called for hereunder to be taken by the Escrow Funds until the Escrow Agent shall have received Agent) sooner than two (2) Business Days after (i) a final nonappealable order of a court of competent jurisdiction directing delivery of it has received the Escrow Funds applicable documents required under this Make Good Agreement in good form, or (ii) a written agreement executed by the other parties hereto directing delivery passage of the Escrow Fundsapplicable time period (or both, in which event as applicable under the Escrow Agent shall disburse terms of this Make Good Agreement), as the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory case may be.
f. All payments to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it hereunder shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) aboveU. S. dollars.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Make Good Escrow Agreement (L & L International Holdings, Inc)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the parties hereto that:
(a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations on the part of the Escrow Agent shall be read into this Escrow Agreement against the Escrow AgentAgreement. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(cb) The Escrow Agent shall not be liable, except liable for any action or failure to act in its own capacity as Escrow Agent hereunder unless such action or failure to act shall constitute gross negligence, negligence or willful misconduct or breach on the part of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, in which case there shall be no indemnification obligations as provided in Paragraph 4, and the other parties hereto Escrow Agent shall jointly and severally indemnify and hold harmless the Escrow Agent (Seller, Buyer and any successor Escrow Agent) their respective officers, directors, agents and employees from and against any and all lossesloss, liabilities, claims, actions, damages and expenses, cost or expense (including reasonable attorney's fees and disbursements, arising out attorneys’ fees) that they may suffer or incur as a consequence of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment such gross negligence or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delaysmisconduct.
(dc) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder (collectively a “Notice”) without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent will confirm the receipt and content of any Notice with the other parties. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume assume, unless it has actual knowledge to the contrary, that any person purporting to give notice Notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(ed) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreementas provided in paragraph 7(b) above.
(fe) The Escrow Agent is serving as escrow holder only and has no interest in having only possession thereof, and is not charged with any duty or responsibility to determine the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification validity or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility enforceability of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereundersuch document.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Stock Certificate(s) and Documents and the Purchase Funds to any successor Escrow Agent Agent, jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow AgreementAgreement thereafter. The resignation of the Escrow Agent will take effect on the earlier of (ia) the appointment of a successor (including a court of competent jurisdiction) or (iib) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's ’s sole responsibility after that time shall be to safekeep safe keep the Escrow deposited Stock Certificate(s) and Documents and Purchase Funds and not make delivery or disposition thereof until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between among the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Stock Certificate(s), Documents or Purchase Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it otherwise determines that the Stock Certificates, Documents and/or Purchase funds should take hereunderbe retained, then the Escrow Agent shall be entitled to may retain the Escrow Stock Certificate(s), Documents and/or Purchase Funds until the Escrow Agent shall have received (i) a final nonappealable non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Funds Stock Certificate(s) and/or Purchase funds, or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Stock Certificate(s), Documents and/or Purchase Funds, in which event case the Escrow Agent shall disburse promptly deliver the Escrow Stock Certificate(s), Documents and/or Purchase Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of by counsel for the presenting party reasonably satisfactory to the Escrow Agent to the effect that said court order is final and nonappealablenon-appealable. The Escrow Agent shall act on such court order make no independent determination regarding the Stock Certificate(s), Documents or Purchase Funds absent the filing and notice of a legal opinions without further questionaction by one or both of the parties.
(lk) Notwithstanding anything This Agreement shall be binding upon and inure solely to the contrary contained herein, in the event benefit of any dispute between the parties hereto as and their respective successors (including successors by way of merger) and assigns, heirs, administrators and representatives and shall not be enforceable by or inure to the facts benefit of default, the validity or meaning of these instructions or any other fact or matter relating third party except as provided in paragraph 7(g) with respect to the transaction between the parties, a resignation by the Escrow Agent. Each entity that is a party hereto represents and warrants that they have the full power and authority to bind the entity and that Escrow Agent is instructed as follows:
(i) That it shall may rely upon such representation with out further inquiry. This Agreement may be under no obligation to actmodified only in writing, except as and to the extent directed under process or order signed by all of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it no waiver hereunder shall be relieved of all liability under effective unless in writing signed by the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services party to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)charged.
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Stock Purchase Agreement (VOIS Inc.)
Concerning the Escrow Agent. (a) Each party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation the Reorganization Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder that might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting (or, if so requested, refraining from acting) upon and in accordance with any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate (including without limitation the certificates referenced in Sections 5(a), 5(b) and 5(c) hereof), request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrow Funds held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all in the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent's gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any other agreement among such loss or damage and regardless of the parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving at least 30 days' prior written notice of such resignation to Parent and the Stockholders specifying a date upon which such resignation shall not be liabletake effect; provided, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreementhowever, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with -------- ------- continue to serve until its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of successor accepts the Escrow FundsFund. Upon receipt of such notice, or any loss of interest incident a successor escrow agent shall be appointed by Parent and the Stockholders, such successor escrow agent to any such delays.
(d) The become the Escrow Agent hereunder on the resignation date specified in such notice. If a written instrument of acceptance by a successor escrow agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing not have been delivered to it hereunder without being required to determine the authenticity or Escrow Agent within 40 days after the correctness giving of any fact stated therein or such notice of resignation, the proprieties, validity or the service thereof. The resigning Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine at the expense of Parent and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to Stockholders petition any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) jurisdiction for the appointment of a successor (including escrow agent. Parent and the Stockholders, acting jointly, may at any time substitute a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its new escrow agent by giving 10 days' prior written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory thereof to the Escrow Agent to then acting and by Parent and the effect that said court order is final Stockholders paying all fees and nonappealable. The expenses of such Escrow Agent shall act on accrued as of such court order and legal opinions without further questiondate.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Aristotle Corp)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be have any liability to any of the parties to this Agreement or to any third party arising out of its services as Escrow Agent under any duty to give this Agreement, except for damages directly resulting from the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow AgreementAgent's gross negligence or willful misconduct.
(b) This Escrow Agreement expressly sets forth all The Company and the duties of Investors jointly and severally shall indemnify the Escrow Agent and hold it harmless against any loss, liability, damage or expense (including reasonable attorneys' fees) that the Escrow Agent may incur as a result of acting as escrow agent under this Agreement, except for any loss, liability, damage or expense arising from its own gross negligence or willful misconduct. As between the Company and the Investors, such obligations shall be borne equally by the Company and the Investors. For this purpose, the term "attorneys' fees" includes fees payable to any counsel retained by the Escrow Agent in connection with its services under this Agreement and, with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into matter arising under this Escrow Agreement against as to which the Escrow Agent. The Agent performs legal services, if and to the extent that the Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreementitself is a law firm, its standard hourly rates and charges then in effect.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder under this Agreement without being required to determine the authenticity of, or the correctness of any fact stated therein in, that document and irrespective of any facts the Escrow Agent may know or the proprieties, validity or the service thereofbe deemed to know in any other capacity. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give any notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, this Agreement has been duly authorized to do so.
(ed) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to shall have no duties or responsibilities except those expressly set forth in this Agreement. The Escrow Agreement and Agent shall not have any obligations arising out of or be liable bound by the provisions of any other agreement, written or oral, including, but not limited to, the Stock Purchase Agreement.
(e) All of the Escrow Agent's rights of indemnification provided for any action taken in this Agreement shall survive the resignation of the Escrow Agent, its replacement by a successor Escrow Agent, its delivery or omitted deposit of the Escrow Deposit in accordance with such advicethis Agreement, except for any action constituting gross negligence, willful misconduct or a breach the termination of this Escrow Agreement, and any other event that occurs after this date.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for with respect to the contents of any writing sufficiency of the arbitrators or any third party arrangements contemplated herein as a means by this Agreement to resolve disputes and may rely without any liability upon accomplish the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery intentions of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further questionParties.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Escrow Agreement (Irish Mag, Inc.)
Concerning the Escrow Agent. (a) Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation the Refund Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility or duty to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel. Any references herein to joint instructions or words of similar import include any instructions signed in counterpart.
(b) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrow Funds held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all in the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent's gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any other agreement among such loss or damage and regardless of the parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, except for its own gross negligencesecurities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, willful misconduct securities intermediary or breach of this Escrow Agreement, and, except with respect other subescrow agent has to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, except to the extent that such action or omission of any book-entry depository, securities intermediary or other parties hereto shall jointly and severally indemnify and hold harmless subescrow agent was caused by the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment own gross negligence or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or in breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderis hereby authorized, judgment, certification, demand, notice, instrument in making or other writing delivered to it hereunder without being required to determine the authenticity or the correctness disposing of any fact stated therein investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as a subagent of the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon or for any instrument third person or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do sodealing as principal for its own account.
(e) The Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrow Property (or take other action that may act pursuant be called for hereunder to be taken by the advice Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Agreement in good form, or (ii) passage of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken the applicable time period (or omitted in accordance with such adviceboth, except for any action constituting gross negligence, willful misconduct or a breach as applicable under the terms of this Escrow Agreement), as the case may be.
(f) The Escrow Agent is serving as escrow holder only Unless and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as except to the validityextent otherwise expressly set forth herein, valueall deposits and payments hereunder, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as pursuant to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor terms hereof (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory limitation all payments to the Escrow Agent pursuant to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained hereinSection 7, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) aboveU.S. dollars.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Purchaser and the Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Purchaser or the Company is entitled to receipt of the Company Documents and Purchaser Documents pursuant to any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person purporting to give notice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so; (v) shall not be responsible for the identity, authority or rights of any person, firm or corporation executing or delivering or purporting to execute or deliver this Escrow Agreement or any document deposited hereunder or any endorsement thereon or assignment thereof; (vi) shall not be under any duty to give the Escrow Funds property held by it Escrow Agent hereunder any greater degree of care than it Escrow Agent gives its own similar property property; and shall not (vii) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be required to invest full and complete authorization and protection in respect of any funds held action taken, suffered or omitted by Escrow Agent hereunder except as directed pursuant to Section 1 in good faith and in accordance with the opinion of this Escrow Agreementsuch counsel.
(b) The Purchaser and the Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Purchaser and the Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the fees of outside counsel and other costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Purchaser and Company under this Agreement and to no other person.
(c) The Purchaser and the Company jointly and severally agree to reimburse the Escrow Agent for its reasonable out-of-pocket expenses (including counsel fees) incurred in connection with the performance of its duties and responsibilities hereunder not to exceed $1,500.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Purchaser and the Company. Prior to the effective date of the resignation as specified in such notice, the Purchaser and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Purchaser Documents to a substitute Escrow Agent selected by the Purchaser and the Company. If no successor Escrow Agent is named by the Purchaser and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Purchaser Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Purchaser Documents, but is serving only as escrow agent, having only possession thereof.
(f) The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence.
(g) This Escrow Agreement expressly sets forth all exclusively the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No thereto and no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon permitted to advise act as counsel for the Purchaser or the Company, as the case may be, in any party dispute as to the wisdom disposition of the Company Documents and Purchaser Documents, in selling any other dispute among the Purchaser and the Company, whether or retaining or taking or refraining from any action with respect not the Escrow Agent is then holding the Company Documents and Purchaser Documents and continues to any securities or other property deposited act as the Escrow Agent hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering provisions of this Section 4.1 shall survive the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties termination of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedthis Agreement.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement5 herein.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct, and, except with respect to claims based upon such gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's ’s fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any arbitration award, order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the reasonable advice of counsel with respect to any matter relating to this Agreement and, except for its own gross negligence or willful misconduct, the Escrow Agreement and Agent shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxesTaxes. The Company parties hereto will provide the Escrow Agent with appropriate W-9 or other applicable forms for tax identification number certification or nonresident alien certifications. This Section 4(f6(f) and Section 4(c6(c) herein shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) ), or (ii) the day which is 30 thirty (30) days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's ’s sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdictionan Order.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators court or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable an order of a court of competent jurisdiction directing delivery of the Escrow Funds (an “Order”) or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order Order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions Order without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedingscourt. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c6(c) above. The right of the Escrow Agent to file such an interpleader action shall not alter the fact that the dispute shall be resolved by arbitration by the American Arbitration Association as provided in the Supply Agreement.
(m) The Company agrees Buyer and Sellers agree to each pay 50% the Escrow Agent as Agent’s compensation for the services of the Escrow Agent hereunder, a fee which is an aggregate of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder1,000 per year. In addition, the Company agrees to pay all All reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel), shall be paid by Buyer.
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's ’s name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' ’ behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedthereto.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent2.1. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreemententitled to a fee for its services hereunder.
(c) 2.2. The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving notice of such resignation to the Purchaser and the Sellers' Representative specifying a date (not less than 30 days after the giving of such notice) when such resignation shall not take effect. Promptly after such notice, a successor escrow agent shall be liableappointed by mutual agreement of the Purchaser and the Sellers' Representative, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect such successor escrow agent to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the become Escrow Agent (hereunder upon the resignation date specified in such notice. If the Purchaser and any the Sellers's Nominee are unable to agree upon a successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoingescrow agent within 30 days after such notice, the Escrow Agent shall in no event be liable in connection with its investment continued to serve until a successor accepts the escrow and receives the Escrow Property. The Purchaser and the Seller's Nominee may agree at any time to substitute a new escrow agent by giving notice thereof to the Escrow Agent then acting.
2.3. The Escrow Agent undertakes to perform only such duties as are specifically set forth herein. The Escrow Agent, acting or reinvestment of any Escrow Funds held by it hereunder refraining from acting in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken mistake of fact or omitted in accordance with such advice, except error of judgment by it or for any action constituting acts or omissions by it of any kind, unless caused by willful misconduct or gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject entitled to withholding regulations then rely, and shall be protected in force with respect doing so, upon (a) any written notice, instrument, or signature believed by it be genuine and to United States taxes. The Company will provide have been signed or presented by the Escrow Agent with appropriate W-9 forms for tax identification number certification proper party or nonresident alien certifications. This Section 4(fparties duly authorized to do so, or (b) and Section 4(c) shall survive notwithstanding any termination the advice of this Escrow Agreement or the resignation counsel (which may be of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement's own choosing). The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means submitted to resolve disputes it hereunder and may shall be entitled in good faith to rely without any liability upon the contents thereof.
2.4. Each party (k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that case of the Sellers, only to the extent of their Purchase Price, except to ▇▇▇▇ and Rind, to whom no such limitation applies), agrees to indemnify the Escrow Agent in good faith is in doubt and hold it harmless against any and all liabilities incurred by it hereunder as a consequence of such party's actions (including reasonable legal fees and expenses), and the parties further agree, subject to what action it should take hereunderthe above limitation, to indemnify the Escrow Agent shall be entitled to retain the Escrow Funds until and hold it harmless against any and all liabilities incurred by it hereunder that are not a consequence of their respective action, except in either case for liabilities incurred by the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds resulting from its own willful misconduct or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealablegross negligence.
2.5. The Escrow Agent shall act on such court order and legal opinions without further questionnot be prevented from acting as counsel to the Sellers as a result of serving as Escrow Agent hereunder.
(l) Notwithstanding anything 2.6. Anything in the foregoing to the contrary contained hereinnotwithstanding, in at the event sole discretion of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent, said Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to actmay, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretionat any time, deposit the property herein or so much thereof as remains in its hands Escrow Property with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said a court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered selected by the Escrow Agent hereunder. In additionand upon such event, the Company agrees to pay all reasonable expenses, disbursements liability and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties responsibility of the Escrow Agent shall be issued by the other parties hereto or on terminate upon such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayeddeposit.
Appears in 1 contract
Sources: Escrow Agreement (Ruskin Moscou Evans & Faltischek Pc/Fa)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty undertakes to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property perform only such duties as are expressly set forth herein and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of agrees to release any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds property held by it hereunder in good faith, (the “Escrowed Property”) in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of and conditions set forth in this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(db) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any writing or instrument or signature reasonably believed by it which it, in good faith, believes to be genuine genuine, may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and may assume that any person purporting to give notice any writing, notice, advice or advice, accept receipt of or execute any document, or make any statement instructions in connection with the provisions hereof, hereof has been duly authorized to do so. The Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner, and execution, or validity of any instrument deposited in this escrow, nor as to the identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the safekeeping of the Escrowed Property, and for the disposition of the same in accordance with this Agreement. Escrow Agent shall not be deemed to have knowledge of any matter or thing unless and until Escrow Agent has actually received written notice of such matter or thing and Escrow Agent shall not be charged with any constructive notice whatsoever.
(c) Escrow Agent shall hold in escrow, pursuant to this Agreement, the Escrowed Property actually delivered and received by Escrow Agent hereunder, but Escrow Agent shall not be obligated to ascertain the existence of (or initiate recovery of) any other property that may be part or portion of the Collateral, or to become or remain informed with respect to the possibility or probability of additional Collateral being realized upon or collected at any time in the future, or to inform any parties to this Agreement or any third party with respect to the nature and extent of any Collateral realized and received by Escrow Agent (except upon the written request of such party), or to monitor current market values of the Collateral. Further, Escrow Agent shall not be obligated to proceed with any action or inaction based on information with respect to market values of the Collateral which Escrow Agent may in any manner learn, nor shall Escrow Agent be obligated to inform the parties hereto or any third party with respect to market values of any of the Collateral at any time, Escrow Agent having no duties with respect to investment management or information, all parties hereto understanding and intending that Escrow Agent’s responsibilities are purely ministerial in nature. Any reduction in the market value or other value of the Collateral while deposited with Escrow Agent shall be at the sole risk of Pledgor and Secured Party. If all or any portion of the Escrowed Property is in the form of a check or in any other form other than cash, Escrow Agent shall deposit same as required but shall not be liable for the nonpayment thereof, nor responsible to enforce collection thereof.
(d) In the event instructions from Secured Party, Pledgor, or any other Person would require Escrow Agent to expend any monies or to incur any cost, Escrow Agent shall be entitled to refrain from taking any action until it receives payment for such costs. It is agreed that the duties of Escrow Agent are purely ministerial in nature and shall be expressly limited to the safekeeping of the Escrowed Property and for the disposition of same in accordance with this Agreement. Secured Party, Pledgor and the Company, jointly and severally, each hereby indemnifies Escrow Agent and holds it harmless from and against any and all claims, liabilities, damages, costs, penalties, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees or charges of any character or nature (collectively, the “Claims”), which it may incur or with which it may be threatened, directly or indirectly, arising from or in any way connected with this Agreement or which may result from Escrow Agent’s following of instructions from Secured Party, Pledgor or the Company, and in connection therewith, indemnifies Escrow Agent against any and all expenses, including attorneys’ fees and the cost of defending any action, suit, or proceeding or resisting any Claim, whether or not litigation is instituted, unless any such Claims arise as a result of Escrow Agent’s gross negligence or willful misconduct. Escrow Agent shall be vested with a lien on all Escrowed Property under the terms of this Agreement, for indemnification, attorneys’ fees, court costs and all other costs and expenses arising from any suit, interpleader or otherwise, or other expenses, fees or charges of any character or nature, which may be incurred by Escrow Agent by reason of disputes arising between Pledgor, the Company, Secured Party, or any third party as to the correct interpretation of this Agreement, and instructions given to Escrow Agent hereunder, or otherwise, with the right of Escrow Agent, regardless of the instruments aforesaid and without the necessity of instituting any action, suit or proceeding, to hold any property hereunder until and unless said additional expenses, fees and charges shall be fully paid. Any fees and costs charged by the Escrow Agent for serving hereunder shall be paid by the Pledgor and the Company, jointly and severally.
(e) In the event Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from Secured Party, the Company, Pledgor or from third persons with respect to the Escrowed Property, which, in Escrow Agent’s sole opinion, are in conflict with each other or with any provision of this Agreement, Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise in writing by Pledgor, the Company and Secured Party and said third persons, if any, or by a final order or judgment of a court of competent jurisdiction. If any of the parties shall be in disagreement about the interpretation of this Agreement, or about the rights and obligations, or the propriety of any action contemplated by the Escrow Agent hereunder, the Escrow Agent may, at its sole discretion, deposit the Escrowed Property with a court having jurisdiction over this Agreement, and, upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully cease and terminate. The Escrow Agent may act pursuant shall be indemnified by the Pledgor, the Company and Secured Party for all costs, including reasonable attorneys’ fees, in connection with the aforesaid proceeding, and shall be fully protected in suspending all or a part of its activities under this Agreement until a final decision or other settlement in the proceeding is received. In the event Escrow Agent is joined as a party to a lawsuit by virtue of the fact that it is holding the Escrowed Property, Escrow Agent shall, at its sole option, either: (i) tender the Collateral in its possession to the advice registry of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken the appropriate court; or omitted (ii) disburse the Collateral in its possession in accordance with such advicethe court’s ultimate disposition of the case, except for and Secured Party, the Company and Pledgor hereby, jointly and severally, indemnify and hold Escrow Agent harmless from and against any action constituting gross negligencedamages or losses in connection therewith including, willful misconduct or a breach of this Escrow Agreementbut not limited to, reasonable attorneys’ fees and court costs at all trial and appellate levels.
(f) The Escrow Agent is serving as escrow holder only may consult with counsel of its own choice (and has no interest in the Escrow Funds deposited hereunder. Any payments costs of income from this Escrow Agreement such counsel shall be subject to withholding regulations then paid by the Pledgor, the Company and Secured Party, jointly and severally) and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in force good faith and in accordance with respect to United States taxesthe opinion of such counsel. The Company will provide the Escrow Agent with appropriate W-9 forms shall not be liable for tax identification number certification any mistakes of fact or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding error of judgment, or for any termination actions or omissions of this Escrow Agreement any kind, unless caused by its willful misconduct or the resignation of the Escrow Agentgross negligence.
(g) The Escrow Agent makes no representation as may resign upon ten (10) days’ written notice to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom parties in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of If a successor ▇▇▇▇▇▇ Agent is not appointed by Secured Party and Pledgor within this ten (including a court of competent jurisdiction10) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderperiod, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of may petition a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) to name a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further questionsuccessor.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Holder and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Holder or Company is entitled to receipt of the Escrowed Stock pursuant to, the Subscription Agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by it in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person purporting to give notice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so; (v) shall not be under any duty to give the Escrow Funds property held by it Escrow Agent hereunder any greater degree of care than it Escrow Agent gives its own similar property property; and (vi) may consult counsel reasonably satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Holder and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be required liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to invest be authorized or within the right or powers conferred upon Escrow Agent by this Agreement. The Holder and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any funds held of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees and costs of outside counsel in defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Holder and Company under this Agreement and to no other person.
(c) The Holder and Company jointly and severally agree to reimburse the Escrow Agent for its reasonable out-of-pocket expenses (including reasonable counsel fees) incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder except by giving five (5) days' prior written notice of resignation to the Holder and the Company. Prior to the effective date of the resignation as directed pursuant specified in such notice, the Holder and Company will issue to Section 1 the Escrow Agent a Joint Instruction authorizing delivery of the Escrowed Stock to a substitute Escrow Agent selected by the Holder and Company. If no successor Escrow Agent is named by the Holder and Company, the Escrow Agent may apply to a court of competent jurisdiction in the state of New York or any federal court located in the state of New York for appointment of a successor Escrow Agent.
(e) The Escrow Agent does not have and will not have any interest in the Escrowed Stock, but is serving only as escrow holder, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(bf) This Escrow Agreement expressly sets forth all exclusively the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No thereto and no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation shall be permitted to act as counsel for the Holder or the Company, as the case may be, in any dispute as to the validitydisbursement of the Escrowed Stock or in any other dispute between the Holder and Company, value, genuineness whether or not the collectibility of any security or other documents or instrument held by or delivered Escrow Agent is then holding the Escrowed Stock and continues to itact as the Escrow Agent hereunder.
(h) The Escrow Agent provisions of this Section 4.1 shall not be called upon to advise any party as to survive the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties termination of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedthis Agreement.
Appears in 1 contract
Sources: Subscription Agreement (5 G Wireless Communications Inc)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give compensated annually in accordance with the fee schedule set forth in Exhibit A attached hereto and reimbursed by the Buyer and the Seller (in equal amounts) for all reasonable out-of-pocket expenses, disbursements and advances (including reasonable attorneys' fees and expenses actually incurred by the Escrow Funds held Agent in connection with the use of outside attorneys) incurred or made by it hereunder any greater degree the Escrow Agent in the performance of care than it gives its own similar property duties hereunder. Such fees, costs, and expenses may include the allocated cost of internal counsel as the Escrow Agent shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 determine in its sole discretion in connection with the interpretation or administration of this Escrow AgreementAgreement and/or any litigation, disputes or claims arising hereunder. The parties agree that the Escrow Agent shall be entitled to seek the advice of counsel of its choosing as to the proper tax treatment of this escrow if, prior to January 15, 1998, the Escrow Agent shall not have received an opinion of counsel to the Buyer as to such tax treatment, in form and substance reasonably satisfactory to the Escrow Agent. The fees for such advice shall be paid by the Buyer. If the Escrow Agent's compensation, fees, cost, expenses or attorneys' fees provided for herein are not promptly paid, the Escrow Agent shall have the right to reimburse itself from the Escrow Funds.
(b) This The Escrow Agreement expressly sets forth all Agent may resign at any time by giving notice of such resignation to the duties Seller and the Buyer specifying a date not less than 10 business days following the date of such notice when such resignation shall take effect. Upon such notice, a successor escrow agent shall be appointed by the Buyer, with the concurrence of the Seller not to be unreasonably withheld, such successor escrow agent to become the Escrow Agent hereunder upon the resignation date specified in such notice. The Buyer and the Seller (with respect each other's concurrence, not to be unreasonably withheld) may at any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against time appoint a new escrow agent by giving notice thereof to the Escrow AgentAgent then acting. The Escrow Agent shall continue to serve until its successor accepts such appointment and receives the Escrow Funds. In the event a successor escrow agent shall not have been appointed within thirty (30) days after the Escrow Agent provides its notice of resignation, the Escrow Agent may, at the expense of the Buyer, petition a court of competent jurisdiction for the appointment of a successor escrow agent. In addition to the above provisions, the Escrow Agent may resign at any time and appoint as successor escrow agent any entity to which the Buyer consents to act as successor escrow agent, and in which the Seller shall concur, such consent and concurrence not to be bound by unreasonably withheld. It is understood and agreed that in all events and notwithstanding anything herein to the provisions of contrary, any other agreement among the parties hereto except this Escrow Agreementsuccessor escrow agent hereunder shall be a nationally recognized banking institution or trust company.
(c) The Escrow Agent shall undertakes to perform only such duties as are specifically set forth in this Agreement and is not be liable, except for its own gross negligence, willful misconduct charged with any duties or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and responsibilities in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment any other document or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereofagreement, including, without limitationbut not limited to, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow the Purchase Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken acts or omitted in accordance with such adviceomissions by it of any kind unless caused by its own misconduct, except for any action constituting bad faith or gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject entitled to withholding regulations then rely upon, and shall be protected in force with respect relying upon, (i) any written notice (including, without limitation, the written notices contemplated hereby), instrument or signature believed by it exercising good faith to United States taxes. The Company will provide be genuine and to have been signed or presented by the Escrow Agent with appropriate W-9 forms for tax identification number certification proper party or nonresident alien certifications. This Section 4(fparties duly authorized to do so and (ii) and Section 4(c) shall survive notwithstanding any termination the advice of this Escrow Agreement or the resignation counsel (which may be of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement's own choosing). The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means submitted to resolve disputes it under this Agreement and may shall be entitled reasonably to rely without any liability in good faith upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act not inquire into or consider whether a claim complies with the terms of the Purchase Agreement. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form, execution, validity or genuineness of documents or securities now or hereafter deposited hereunder, or of any endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent be responsible or liable in any respect on the account of the identity, authority or rights of the persons executing or delivering or reporting to execute or deliver any such court order and legal opinions without further questiondocument, security or endorsement or this Escrow Agreement.
(ld) Notwithstanding anything The Buyer and the Seller agree, jointly and severally, to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, indemnify the Escrow Agent is instructed and to hold it harmless against any and all liabilities incurred by it under this Agreement as follows:
(i) That it shall be under no obligation to acta consequence of their respective actions, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered liabilities incurred by the Escrow Agent hereunderresulting from its own misconduct, bad faith or gross negligence. In additionThis right of indemnification shall survive the termination of this Escrow Agreement, and the Company agrees to pay all reasonable expenses, disbursements and advances incurred removal or made by the Escrow Agent in performance resignation of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties . The costs and expenses of the Escrow Agent enforcing this right of indemnification shall also be issued paid by the other parties hereto or on such parties' behalf unless Buyer and the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedSeller.
Appears in 1 contract
Concerning the Escrow Agent. 16.1 Concurrently with the execution of this Agreement, the Shareholders shall deposit with the Escrow Agent the share certificates representing all of the Shares owned by them duly endorsed in blank for transfer as well as all evidence of their Loan Claims duly assigned or endorsed in blank for transfer. The Escrow Agent is hereby authorized to hold and deal with same in accordance with the terms and conditions of this Agreement. As other Shares are issued to the Shareholders or additional Loan Claims accrue to them, the certificates representing said Shares and all evidence of Loan Claims shall be forthwith assigned or endorsed in blank for transfer and deposited with the Escrow Agent and shall be held and dealt with in accordance with the terms and conditions of this Agreement. Notwithstanding the deposit of the Shares and the evidence of Loan Claims with the Escrow Agent, at all times prior to the closing of transactions referred to herein, each Shareholder shall vote its Shares and be entitled to all dividends declared and paid thereon as well as to all other benefits that may accrue from said Shares from time to time and to all interest payable on the Loan Claims.
16.2 The Escrow Agent may, at any time, resign or be discharged from any further duties and responsibilities hereunder without liability of any kind other than for its intentional or gross fault, upon giving fifteen (a15) days notice in writing to each of the Shareholders.
16.3 In the event of the resignation of the Escrow Agent herein named, the Shareholders shall agree within fifteen (15) days on the appointment of its successor. Such successor, immediately upon its appointment, shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Escrow Agent herein, without any further formality, and the Escrow Agent originally named and ceasing to act shall, upon payment of any amounts due to it hereunder, execute and deliver all such assignments and other instruments as may be necessary for the purpose of assuring to the new escrow agent full seizin in the premises and shall deliver the certificates representing the Shares and any evidences of Loan Claims that it may hold to the new escrow agent.
16.4 It is acknowledged by the parties that the Escrow Agent shall not incur any liabilities or responsibilities by reason of any matter or thing done or omitted to be done under or in relation to this Agreement, except for intentional or gross fault on its part. The Escrow Agent shall not be under any duty entitled to give the reasonable remuneration for its services hereunder.
16.5 The Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property Agent shall have no duties or responsibilities except those expressly set forth herein. It may consult with counsel and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent fully protected with respect to any and all matters pertinent heretoaction taken or omitted to be taken by it in good faith. No implied In the event that the Escrow Agent shall be uncertain as to its duties or obligations rights hereunder, or shall be read into this Escrow Agreement against receive instructions from any of the parties with respect to the evidence of Loan Claims, the Shares and/or any other documents or sums of money held by it in escrow pursuant to the provisions hereof which in the Escrow Agent. 's opinion are in conflict with the provisions hereof, it shall be entitled to refrain from taking any action other than to keep such evidence of Loan Claims, Shares and/or other documents or sums of money safely until it shall have been directed otherwise in writing by the Corporation and the Shareholders or by a decision of the arbitrators in the manner set forth in subsection 19.1.
16.6 The parties hereby agree to indemnify and hold harmless the Escrow Agent from and against any and all claims relating to anything done or omitted by the Escrow Agent in the course of the carrying out of the terms and conditions of this Agreement.
16.7 The Escrow Agent shall not be bound by the provisions of to enter into or maintain any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liablelitigation, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by until it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of against all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)liabilities which might be reasonably incurred thereby.
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Company, TWC and Leucadia agree to indemnify, jointly and severally, the Escrow Agent, and its officers, directors, employees and agents, for, and to hold it and each of them harmless against, any loss, liability or expense arising out of or in connection with this Agreement and carrying out its duties hereunder, including, without limitation, the cost and expenses of defending itself against any claim of liability; provided, however, that none of the Company, TWC or Leucadia will be liable for indemnification or otherwise for any loss, liability or expense to the extent arising out of the gross negligence, willful misconduct or bad faith of the Escrow Agent.
(b) The Escrow Agent shall not be under any duty to give exercise the Escrow Funds held by it hereunder any greater same degree of care than toward the Escrowed Property as it gives exercises toward its own similar property and shall not be required held to invest any funds held hereunder except as directed pursuant to Section 1 higher standard of care under this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all , nor be deemed to owe any fiduciary duty to the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties Company, TWC or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow AgreementLeucadia.
(c) The Escrow Agent may act upon any instrument or other writing believed by it in good faith to be genuine and to have been signed or presented by the proper Person, and shall not be liableliable to any party hereto in connection with the performance of its duties hereunder, except for its own gross negligence, willful misconduct or breach bad faith. The duties of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (shall be determined only with reference to this Escrow Agreement and applicable laws and the Escrow Agent is not charged with any successor Escrow Agent) from and against knowledge of, or any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and duties or responsibilities in connection with this Escrow Agreementwith, any other document or agreement. Without limiting the foregoingIf in doubt as to its duties and responsibilities hereunder, the Escrow Agent may consult with counsel and shall be protected in no event be liable in connection with its investment any action taken or reinvestment of any Escrow Funds held by it hereunder omitted in good faith, faith in accordance with reliance on the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct advice or breach opinion of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delayscounsel.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, of its powers or make responsibilities hereunder and exercise any statement in connection with the provisions hereof, has been duly authorized to do sorights hereunder either directly or by or through its agents or attorneys.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to Nothing in this Escrow Agreement and shall not be liable for deemed to impose upon the Escrow Agent any action taken duty to qualify to do business or omitted to act as agent or otherwise in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach jurisdiction other than the State of this Escrow AgreementNew York.
(f) The Escrow Agent is serving as escrow holder only shall not be responsible for and has no interest in shall not be under a duty to examine into or pass upon the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification validity, binding effect, execution or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination sufficiency of this Escrow Agreement Agreement, any agreement amendatory or the resignation supplemental hereto or of the Escrow Agentany certificates, notices or other writings delivered to it hereunder.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility collectability of any security or other documents document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining retaining, or taking or refraining from taking any action with respect to to, any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may shall have the right at any time to resign as hereunder (subject to a successor agent becoming a party hereto) by giving, at least thirty (30) days prior to the date specified for such by delivering resignation to take effect, written notice of its resignation to the Escrow Funds to any successor Escrow Company, TWC, Leucadia and the Administrative Agent jointly designated by at the other parties hereto in writingaddresses set forth herein, or to any court at such other addresses as the Company, TWC, Leucadia and the Administrative Agent shall provide. Upon the effective date of competent jurisdictionsuch resignation, whereupon all property then held by the Escrow Agent hereunder shall be discharged delivered by it to a successor escrow agent selected by the Company, TWC and Leucadia. Such successor escrow agent shall be a bank or trust company in good standing organized and doing business under the laws of the United States or any state thereof, subject to examination by state or federal authorities, and from any having combined capital and all further obligations arising in connection with this Escrow Agreementsurplus of not less than $500,000,000 which is authorized under the laws of its jurisdiction of incorporation to exercise corporate trust powers. The resignation of If no successor escrow agent is appointed within thirty (30) days, the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including may apply to a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the jurisdiction for such appointment, but shall remain Escrow Agent has not received a designation of until a successor Escrow Agent, the Escrow Agent's sole responsibility after that time agent shall be to safekeep the Escrow Funds until receipt of become a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdictionparty hereto.
(j) The If the Escrow Agent should at any time be confronted with inconsistent claims or demands to the Escrowed Property, the Escrow Agent shall have interplead the parties in the Bankruptcy Court, and request that such court determine the respective rights of the parties with respect to the Escrowed Property. In the event the Escrow Agent no responsibility for the contents longer holds any Escrowed Property, it shall be released from any obligation or liability as a consequence of any writing such claims or demands, other than those arising out of the arbitrators its gross negligence or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereofwillful misconduct.
(k) In the event fund transfer instructions are given (other than in writing at the time of any disagreement between the other parties hereto resulting execution of the Agreement), whether in adverse claims writing, by telecopier or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderotherwise, the Escrow Agent shall be entitled is authorized to retain seek confirmation of such instructions by telephone call-back to the Escrow Funds until person or persons designated on the call-back schedule attached hereto (the "Call-Back Schedule"), and the Escrow Agent shall have may rely upon the confirmations of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of and acknowledged by the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event Agent. If the Escrow Agent shall disburse is unable to contact any of the authorized representatives identified in the Call-Back Schedule, the Escrow Funds in accordance with Agent is hereby authorized to seek confirmation of such order instructions by telephone call-back to any one or agreementmore of a party's executive officers, ("Executive Officers"), which shall include the titles of Chief Executive Officer, Executive Vice President, General Counsel and Secretary, as the Escrow Agent may select. Any court order referred to in clause (i) above Such "Executive Officer" shall be accompanied by a legal opinion of counsel for the presenting party satisfactory deliver to the Escrow Agent a fully executed incumbency certificate, and the Escrow Agent may rely upon the confirmation of anyone purporting to the effect that said court order is final and nonappealablebe any such officer. The Escrow Agent shall act on and the beneficiary's bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by the Company, TWC or Leucadia to identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary bank. The Escrow Agent may apply any of escrowed funds for any payment order it executes using any such court order and legal opinions without further questionidentifying number, even when its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary's bank or an intermediary bank designated. The parties to this Agreement acknowledge that such security procedure is commercially reasonable.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, Any corporation into which the Escrow Agent is instructed as follows:
(i) That in its individual capacity may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent in its individual capacity shall be under no obligation to act, except as and to the extent directed under process or order of courta party, or until it has been adequately indemnified any corporation to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit which substantially all the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights corporate trust business of the Escrow Agent in its individual capacity may be transferred, shall be the Escrow Agent under Section 4(c) abovethis Escrow Agreement without further act.
(m) The Company agrees Anything in this Escrow Agreement to pay the contrary notwithstanding, in no event shall the Escrow Agent as compensation be liable for special, indirect or consequential damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised for the services likelihood for such loss or damage and regardless of the form of action. The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of the Escrow Agent hereunder, a fee or the termination of $1,500 as payment in full for the services to be rendered by the this Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Agreement.
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions Distribution of the Escrow Agent's name or funds received under the rights, powers or duties Letters of Credit shall not be subject to offset by the Escrow Agent shall be issued by for any payment or other obligations of the Company, TWC or Leucadia hereunder or otherwise, for any claim against any of the Company, TWC or Leucadia or for any other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedreason whatsoever.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give exercise the Escrow Funds held by it hereunder any greater same degree of care than toward the Escrowed Property as it gives exercises toward its own similar property and shall not be required held to invest any funds held hereunder except as directed pursuant higher standard of care under this Agreement, nor be deemed to Section 1 of this Escrow Agreementowe any fiduciary duty to the Company.
(b) This The Escrow Agreement expressly sets forth all Agent may act upon any instrument or other writing believed by it in good faith to be genuine and to have been signed or presented by the proper person, and shall not be liable to any party hereto in connection Page 7 <PAGE> with the performance of its duties hereunder, except for its own negligence, wilful misconduct or bad faith. The duties of the Escrow Agent shall be determined only with respect reference to this Agreement and applicable laws, and the Escrow Agent is not charged with any and all matters pertinent hereto. No implied knowledge of or any duties or obligations responsibilities in connection with any other document or agreement. If in doubt as to its duties and responsibilities hereunder, the Escrow Agent may consult with counsel of its choice and shall be read into this Escrow Agreement against protected in any action taken or omitted in good faith in connection with the Escrow Agent. The Escrow Agent shall not be bound by the provisions advice or opinion of any other agreement among the parties hereto except this Escrow Agreementsuch counsel.
(c) The Escrow Agent shall not be liable, except for may execute any of its own gross negligence, willful misconduct powers or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct responsibilities hereunder and exercise any rights hereunder either directly or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with by or through its investment agents or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delaysattorneys.
(d) The Nothing in this Agreement shall be deemed to impose upon the Escrow Agent shall be entitled any duty to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized qualify to do sobusiness or to act as agent or otherwise in any jurisdiction other than the State of Maryland.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement shall not be responsible for and shall not be liable for any action taken under a duty to examine into or omitted in accordance with such advicepass upon the validity, except for any action constituting gross negligencebinding effect, willful misconduct execution or a breach sufficiency of this Escrow Agreement, any agreement amendatory or supplemental hereto or of any certificates delivered to it hereunder.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility collectability of any security or other documents document or instrument held by or delivered to it.
(hg) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining retaining, or taking or refraining from taking any action with respect to to, any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(jh) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the Company at the address set forth herein or at such other address as the Company shall provide, at least 60 days prior to the date specified for such resignation to take effect. Upon the effective date of such resignation, all cash and other payments and all other property then held by the Escrow Agent hereunder shall be delivered by it to a successor escrow agent. If no responsibility successor escrow agent is appointed, the Escrow Agent may apply to a court of competent jurisdiction for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereofsuch appointment.
(ki) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as should at any time be confronted with inconsistent claims or demands to what action it should take hereunderthe Escrowed Property, the Escrow Agent shall be entitled have the right, but not the duty, to retain interplead the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a parties in any court of competent jurisdiction directing delivery and request that such court determine the respective rights of the Escrow Funds or (ii) a written agreement executed by parties with respect to the other parties hereto directing delivery of Escrowed Property. In the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained hereinno longer holds any Escrowed Property, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no released from any obligation to act, except or liability as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution a consequence of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) aboveclaims or demands.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Escrow Agreement
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company that:
(a) The Escrow Agent shall not be under any duty to give the Escrow Funds Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among of the parties hereto Company except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct, and, except with respect to claims based upon such gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, and the other parties hereto Company shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's attorneys' fees and disbursements, disbursements arising out of and in connection with this Escrow AgreementAgreement other than as a result of the Escrow Agent's negligence or willful misconduct. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds cash held by it hereunder in good faith, in accordance with the terms hereof, including, including without limitation, limitation any liability for any delays (not resulting from its gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct) in the investment or reinvestment of the Escrow FundsEscrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent may act in reliance upon any an instrument or signature reasonably believed by it in good faith to be genuine and may assume assume, if in good faith, that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.or
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under Notwithstanding any duty provision contained herein to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liablecontrary, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly including its officers, directors, employees and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all lossesagents, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.shall:
(da) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted under this Agreement so long as it shall have acted in good faith and without gross negligence;
(b) have no responsibility to inquire into or determine the genuineness, authenticity, or sufficiency of any securities, checks, or other documents or instruments submitted to it in connection with its duties hereunder;
(c) be entitled to deem the signatories of any documents or instruments submitted to it hereunder as being those purported to be authorized to sign such documents or instruments on behalf of the parties hereto, and shall be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and without requiring substantiating evidence of any kind;
(d) be entitled to refrain from taking any action contemplated by this Agreement in the event that it becomes aware of any disagreement between the parties hereto as to any facts or as to the happening of any contemplated event precedent to such action;
(e) have no responsibility or liability for any diminution in value of any assets held hereunder which may result from any investments or reinvestment made in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.provision which may be contained herein;
(f) The Escrow Agent be entitled to compensation for its services hereunder as per Schedule 2 attached hereto (which compensation is serving as escrow holder only payable upon execution of this Agreement), which is made a part hereof, and has for reimbursement of its reasonable out-of-pocket expenses including, but not by way of limitation, the reasonable fees and costs of attorneys or agents which it may find necessary to engage in performance of its duties hereunder, all of which compensation and expenses shall be paid one-half by Parent and one-half severally by the Sellers (but no interest in portion of which compensation and expenses shall be paid from the Escrow Funds deposited hereunder. Any payments Fund);
(g) be, and hereby is, indemnified and saved harmless by Parent and the Sellers from all losses, liabilities, costs and expenses, including reasonable attorney fees and expenses, which may be incurred by it as a result of income its acceptance of the Escrow Fund or arising from this Escrow Agreement the performance of its duties hereunder (which indemnification obligations shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide borne one-half by Parent and one-half severally by the Sellers, but no portion of which indemnification obligations shall be paid from the Escrow Agent with appropriate W-9 forms for tax identification number certification Fund), unless such losses, liabilities, costs and expenses shall have been finally adjudicated to have resulted from the bad faith or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation gross negligence of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, valueand such indemnification shall survive its resignation or removal, genuineness or the collectibility termination of any security or other documents or instrument held by or delivered to it.this Agreement;
(h) The Escrow Agent in the event that (i) any dispute shall not be called upon to advise any party as to arise between the wisdom in selling or retaining or taking or refraining from any action parties with respect to the disposition or disbursement of any securities or other property deposited of the assets held hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon (ii) the Escrow Agent shall be discharged uncertain as to how to proceed in a situation not explicitly addressed by the terms of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation Agreement whether because of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction conflicting demands by the other parties hereto or a final order otherwise, be permitted to interplead all of the assets held hereunder into a court of competent jurisdiction.
(j) , and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets. The parties hereto other than the Escrow Agent shall have no responsibility for the contents of further agree to pursue any writing of the arbitrators redress or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made recourse in connection with the Escrow Fundssuch a dispute, or in the event that without making the Escrow Agent in good faith is in doubt as a party to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received same;
(i) have only those duties as are specifically provided herein, which shall be deemed purely ministerial in nature, and shall under no circumstance be deemed a final nonappealable order of a court of competent jurisdiction directing delivery fiduciary for any of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealablethis Agreement. The Escrow Agent shall act on such court order neither be responsible for, nor chargeable with, knowledge of the terms and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event conditions of any dispute other agreement, instrument or document between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of connection herewith. This Agreement sets forth all liability under the terms hereof as matters pertinent to the property so depositedescrow contemplated hereunder, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties no additional obligations of the Escrow Agent shall be issued inferred from the terms of this Agreement or any other agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION;
(j) have the right, upon written notice to the Owners’ Representative and Parent, but not the obligation, to consult with counsel of choice and shall not be liable for action taken or omitted to be taken by the other parties hereto Escrow Agent in accordance with the advice of such counsel; and
(k) have the right, upon written notice to the Owners’ Representative and Parent, to perform any of its duties hereunder through agents, attorneys, custodians or on such parties' behalf unless nominees. Any banking association or corporation into which the Escrow Agent may be merged or converted or with which the Escrow Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent shall first have given its specific written consent be a party, or any banking association or corporation to such mention(s)which all or substantially all of the corporate trust business of the Escrow Agent shall be transferred, which consent shall not be unreasonably withheld succeed to all the Escrow Agent’s rights, obligations and immunities hereunder without the execution or delayedfiling of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by each of the Seller and FGC that:
(ai) The Escrow Agent shall not be under any duty to give the Escrow Funds Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of in this Escrow Agreement.
(bii) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(ciii) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of any representations, warranties or covenants contained in this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages damages, and expenses, including reasonable attorney's attorneys' fees and disbursements, arising out of of, and in connection with with, this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.in
(div) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument instrument, or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume assume, if in good faith, that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(ev) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(fvi) The Escrow Agent does not have any interest in the Escrowed Funds deposited hereunder, but is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunderonly. Any payments of income from this the Escrow Agreement Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(fparagraph (vi) and Section 4(cparagraph (iii) of this Article V shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(gvii) The Escrow Agent makes no representation as to the validity, value, genuineness genuineness, or the collectibility of any security or other documents or instrument held by by, or delivered to to, it.
(hviii) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(iix) The Escrow Agent (and any successor Escrow Agentescrow agent) may at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by FGC and the Seller or at any time may resign as by giving written notice to such by delivering effect to FGC and the Seller. Upon any such termination or resignation, the Escrow Funds Agent shall deliver the Escrowed Property to any successor Escrow Agent escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdictionjurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent will shall take effect on the earlier of (iA) the appointment of a successor (including a court of competent jurisdiction) or (iiB) the day which that is 30 days after the date of delivery delivery: (1) to the Escrow Agent of its written the other parties' notice of resignation termination or (2) to the other parties heretohereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor Escrow Agentescrow agent, the Escrow Agent's sole responsibility after that time shall be to safekeep keep the Escrow Funds Escrowed Property safe until receipt of a designation of successor Escrow Agent escrow agent or a joint written disposition instruction by the other parties hereto or a final an enforceable order of a court of competent jurisdiction.
(jx) The T Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kxi) In the event of any disagreement among or between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow FundsEscrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain rtoain the Escrow Funds Escrowed Property until the Escrow Agent shall have received (iA) a final nonappealable and non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Funds Escrowed Property or (iiB) a written agreement executed by the other parties hereto directing delivery of the Escrow FundsEscrowed Property, in which event the Escrow Agent shall disburse the Escrow Funds Escrowed Property in accordance with such order or agreement. Any court order referred to in clause (iA) above shall be accompanied by a legal opinion of by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealablenon-appealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(lxii) Notwithstanding anything As consideration for its agreement to the contrary contained herein, in the event of any dispute between the parties hereto act as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it herein described, FGC shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent fees determined in accordance with the terms set forth on Exhibit A hereto (and made a part of this Escrow Agreement as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunderif herein set forth). In addition, FGC and the Company agrees Seller agree to pay reimburse the Escrow Agent for all reasonable expenses, disbursements disbursements, and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses expenses, and disbursements of its counsel)) and to share equally the costs thereof.
(nxiii) No printed publicly distributed material or other matter in any language (including, without limitation, prospectuses, notices, reports notices and promotional materialsreports) which mentions the Escrow Agent's name or the rights, powers powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedthereto.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Vendor agrees to pay or reimburse the Escrow Agent upon request for all expenses, disbursement and advances incurred or made by it in connection with carrying out their duties hereunder, including, without limitation, trading commissions and fees and reasonable legal fees.
(b) The Escrow Agent shall not be under any duty prepare and deliver to give the Escrow Funds held by it hereunder any greater degree Purchaser and the Vendor within ten Business Days after the end of care than it gives its own similar property and shall not be required each calendar month prior to invest any funds held hereunder except as directed pursuant to Section 1 termination of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth a written account describing all the duties of the Escrow Agent transactions with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow AgreementFund during such calendar month.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against Vendor and the Escrow Agent, the other parties hereto shall Purchaser agree jointly and severally to indemnify and hold harmless the Escrow Agent (for, and any successor Escrow Agent) from and to hold it harmless against any and all lossesloss, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, liability or expense incurred without gross negligence or bad faith on the part of the Escrow Agent arising out of and or in connection with them entering into this Escrow AgreementAgreement and carrying out their duties hereunder, including the costs and expenses of defending itself against any claim of liability. Without limiting Notwithstanding the foregoing, as between the Vendor and the Purchaser, any indemnity to be paid to the Escrow Agent pursuant to the preceding sentence shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held borne by it hereunder in good faiththe Vendor and Purchaser jointly and severally, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to provided that any such delaysindemnity to be paid in respect of expenses, disbursements or advances referred to in Clause 8(a) hereof shall be borne by the Vendor.
(d) The duties and responsibilities of the Escrow Agent hereunder shall be entitled to rely upon any orderdetermined solely by the express provisions of this Escrow Agreement, judgment, certification, demand, notice, instrument and no further duties or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to responsibilities shall be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do soimplied.
(e) The Escrow Agent may act pursuant upon any instrument or other writing provided by a duly authorised officer of any of the Vendor and the Purchaser as named in the Schedule hereto believed by it in good faith to be genuine, and to be signed or presented by the advice of counsel with respect to any matter relating to this Escrow Agreement proper person as named in the Schedule hereto, and shall not be liable for any action taken or omitted in accordance connection with such advice, except for any action constituting gross negligence, willful misconduct or a breach the performance by it of its duties pursuant to the provisions of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process own wilful misconduct or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) abovegross negligence.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Krug International Corp)
Concerning the Escrow Agent. Notwithstanding any provision contained herein to the contrary, the Escrow Agent, including its officers, directors, employees and agents, shall:
(a) The Escrow Agent shall not be liable for any action taken or omitted under any duty to give the Escrow Funds held by this Agreement so long as it hereunder any greater degree of care than it gives its own similar property shall have acted in good faith and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.without gross negligence;
(b) This Escrow Agreement expressly sets forth all have no responsibility to inquire into or determine the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties genuineness, authenticity, or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions sufficiency of any securities, checks, or other agreement among the parties hereto except this Escrow Agreement.documents or instruments submitted to it in connection with its duties hereunder;
(c) The be entitled to deem the signatories of any documents or instruments submitted to it hereunder as being those purported to be authorized to sign such documents or instruments on behalf of the parties hereto, and shall be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and without requiring substantiating evidence of any kind;
(d) be entitled to refrain from taking any action contemplated by this Agreement in the event that it becomes aware of any disagreement between the parties hereto as to any facts or as to the happening of any contemplated event precedent to such action;
(e) have no responsibility or liability for any diminution in value of any assets held hereunder which may result from any investments or reinvestment made in accordance with any provision which may be contained herein;
(f) be entitled to compensation for its services hereunder as per Exhibit B attached hereto, which is made a part hereof, and for reimbursement of its out-of-pocket expenses including, but not by way of limitation, the fees and costs of attorneys or agents which it may find necessary to engage in performance of its duties hereunder, all to be paid equally by the Company and Purchaser, and the Escrow Agent shall not be liablehave, except for its own gross negligenceand is hereby granted, willful misconduct a prior lien upon any property, cash, or breach assets of this the Escrow AgreementAccount, and, except with respect to claims based upon such gross negligenceits unpaid fees, willful misconduct non-reimbursed expenses and unsatisfied indemnification rights, superior to the interests of any other persons or breach of this Escrow Agreemententities;
(g) be entitled and is hereby granted the right to set off and deduct any unpaid fees, that are successfully asserted against non-reimbursed expenses or unsatisfied indemnification rights from amounts on deposit in the Escrow AgentAccount;
(h) be under no obligation to invest the deposited funds or the income generated thereby until it has received a Form W-9 or W-8, as applicable, from the other parties hereto shall Company and Purchaser, regardless of whether such party is exempt from reporting or withholding requirements under the Internal Revenue Code of 1986, as amended;
(i) be, and hereby is, severally but not jointly indemnified and severally indemnify saved harmless by the Company and hold harmless the Escrow Agent (and any successor Escrow Agent) Purchaser from and against any and all losses, liabilities, claims, actionsproceedings, damages suits, demands, penalties, costs and expenses, including reasonable attorney's without limitation fees and disbursementsexpenses of outside and internal counsel and experts and their staffs and all expenses of document location, arising out duplication and shipment and of preparation to defend any of the foregoing (“Losses”), which may be incurred by it as a result of its execution, delivery or performance of this Agreement, unless such Losses shall have been finally adjudicated to have been primarily caused by the bad faith or gross negligence of the Escrow Agent, and the provisions of this section shall survive the resignation or removal of the Escrow Agent and the termination of this Agreement;
(j) in connection the event that (i) any dispute shall arise between the parties with respect to the disposition or disbursement of any of the assets held hereunder or (ii) the Escrow Agent shall be uncertain as to how to proceed in a situation not explicitly addressed by the terms of this Escrow Agreement. Without limiting Agreement whether because of conflicting demands by the foregoingother parties hereto or otherwise, the Escrow Agent shall in no event be liable permitted to interplead all of the assets held hereunder into a court of competent jurisdiction, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets. The parties hereto other than the Escrow Agent further agree to pursue any redress or recourse in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, includingsuch a dispute, without limitationmaking the Escrow Agent a party to same;
(k) have only those duties as are specifically provided herein, any liability which shall be deemed purely ministerial in nature, and shall under no circumstance be deemed a fiduciary for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident parties to any such delays.
(d) this Agreement. The Escrow Agent shall neither be entitled to rely upon responsible for, nor chargeable with, knowledge of the terms and conditions of any order, judgment, certification, demand, noticeother agreement, instrument or document between the other writing delivered parties hereto, in connection herewith, including without limitation the Purchase Agreement. This Agreement sets forth all matters pertinent to it hereunder without being required to determine the authenticity or escrow contemplated hereunder, and no additional obligations of the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon shall be inferred from the terms of this Agreement or any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or adviceother Agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, accept receipt of or execute any documentDIRECTLY OR INDIRECTLY, or make any statement in connection with the provisions hereofFOR ANY SPECIAL, has been duly authorized to do so.INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION;
(el) The Escrow Agent may act pursuant have the right, but not the obligation, to the advice consult with counsel of counsel with respect to any matter relating to this Escrow Agreement choice and shall not be liable for any action taken or omitted to be taken by Escrow Agent in good faith in accordance with the advice of such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide counsel; if the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination becomes involved in litigation on account of this Escrow Agreement or Agreement, it shall have the resignation right to retain counsel and shall have a first lien on the property deposited hereunder for any and all costs, attorneys’ fees, charges, disbursements, and expenses in connection with such litigation; and shall be entitled to reimburse itself therefor out of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder., and if it shall be unable to reimburse itself from the property deposited hereunder, the parties hereto jointly and severally agree to pay to the Escrow Agent on demand its reasonable charges, counsel and attorneys’ fees, disbursements, and expenses in connection with such litigation; and
(im) The have the right to perform any of its duties hereunder through agents, attorneys, custodians or nominees. Any banking association or corporation into which the Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering be merged, converted or with which the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writingmay be consolidated, or any corporation resulting from any merger, conversion or consolidation to any court of competent jurisdiction, whereupon which the Escrow Agent shall be discharged of and from a party, or any and banking association or corporation to which all further obligations arising in connection with this Escrow Agreement. The resignation or substantially all of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties escrow business of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless transferred, shall succeed to all the Escrow Agent shall first have given its specific written consent Agent’s rights, obligations and immunities hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to such mention(s), which consent shall not be unreasonably withheld or delayedthe contrary notwithstanding.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under liable for any duty actions taken or omitted by it, or any action suffered by it to give be taken or omitted by it, in good faith and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Funds held Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provision, but also as to the truth and acceptability of any information therein contained) which is believed by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any be genuine and all matters pertinent hereto. No implied duties to be signed or obligations shall be read into this Escrow Agreement against presented by the Escrow Agentproper person or person. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by a writing delivered to the provisions Escrow Agent signed by the proper Party or Parties and, if the duties or rights of any other agreement among the parties hereto except this Escrow Agreement.
(c) Agent are affected, unless it shall have given its prior written consent thereto. The Escrow Agent shall not be liable, except responsible for its own gross negligence, willful misconduct the sufficiency or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agentaccuracy, the other parties hereto form of, or the execution validity, value or genuineness of any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall jointly and severally indemnify and hold harmless the Escrow Agent (and be responsible or liable in any successor Escrow Agent) from and against respect on account of the identity, authority or rights of the person executing or delivering or purporting to execute or deliver any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, document or property paid or delivered by the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with under the terms provisions hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken loss which may be incurred by reason of any investment of any monies or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited properties which it holds hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means right to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fundsassume, or in the absence of written notice to the contrary from the proper person or persons, that a fact or an event that by reason of which an action would or might be taken by the Escrow Agent does not exist or has not occurred, without incurring liability for any action taken or omitted, in good faith is and in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order exercise of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fundsits own best judgment, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with reliance upon such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealableassumption. The Escrow Agent shall act on such court order be indemnified and legal opinions without further question.
(l) Notwithstanding anything to held harmless by the contrary contained hereinCompany from and against any expenses, in the event of any dispute between the parties hereto as to the facts of defaultincluding counsel fees and disbursements, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, loss suffered by the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way directly or indirectly arises out of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees or relates to pay the Escrow Agent as compensation for this Agreement, the services of the Escrow Agent hereunder, the monies or other property held by it hereunder or any such expense or loss. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if a fee of $1,500 as payment claim in full for respect thereof shall be made against the services other Parties, notify such Parties in writing; but the failure by the Escrow Agent to be rendered by give such notice shall not relieve any Party form any liability which such Party may have to the Escrow Agent hereunder. In additionUpon the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow Account or it may deposit the Escrow Account with the clerk of any appropriate court or it may retain the Escrow Account pending receipt of a final, non-appealable order of a court having jurisdiction over all of the Parties directing to whom and under what circumstances the Escrow Account is to be disbursed and delivered. The Escrow Agent shall be entitled to reasonable compensation from the Company for all services rendered by it hereunder. From time to time on and after the date hereof, the Company agrees shall deliver or cause to pay all reasonable expenses, disbursements and advances incurred or made by be delivered to the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses such further documents and disbursements of its counsel).
(n) No printed instruments and shall do or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of cause to be done such further acts as the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless reasonably request (it being understood that the Escrow Agent shall first have given no obligation to make such request) to carry out more effectively the provisions and purposes of this Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder. The Escrow Agent may resign at any time and be discharged from its specific duties as Escrow Agent hereunder by its giving the Company at least thirty (30) days' prior written consent notice thereof. As soon as practicable after its resignation, the Escrow Agent shall turn over to a successor escrow agent appointed by the Company, all monies and property held hereunder upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no new escrow agent is so appointed in the sixty (60) day period following the giving of such mention(s)notice of resignation, which consent the Escrow Agent may deposit the Escrow Account with any court it deems appropriate. The Escrow Agent shall resign and be discharged form its duties as Escrow Agent hereunder if so requested in writing at any time by the Company, provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided above. Notwithstanding anything herein to the contrary, the Escrow Agent shall not be unreasonably withheld relieved from liability there under for its own gross negligence or delayedits own willful misconduct.
Appears in 1 contract
Sources: Escrow Agreement (Lionheart Ws Inc)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the have no duties or responsibilities except those expressly set forth herein. The Escrow Funds held by it Agent may consult with counsel and shall have no liability hereunder any greater degree of care than it gives except for its own similar property gross negligence or willful misconduct. It may rely on any notice, instruction, certificate, statement, request, consent, confirmation, agreement or other instrument which it reasonably believes to be genuine and to have been signed or presented by a proper person or persons and shall not be required responsible for ascertaining the validity of any such notice, instruction, certificate, statement, request, consent, confirmation, agreement or other instrument that it reasonably believes to invest any funds held hereunder except as directed pursuant be genuine and to Section 1 of this Escrow Agreementhave been signed or presented by a proper person or persons.
(b) This Escrow Agreement expressly sets forth all the duties of the The Escrow Agent shall have no duties with respect to any agreement or agreements with respect to any or all of the Escrow Funds other than as provided in this Agreement. In the event that any of the terms and provisions of any other agreement between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control in all matters pertinent heretorespects. No implied duties or obligations Notwithstanding any provision to the contrary contained in any other agreement, the Escrow Agent shall have no interest in the Escrow Funds except as provided in this Agreement.
(c) So long as the Escrow Agent shall have any obligation to pay any amount to the Seller Representative and/or the Buyer from the Escrow Funds hereunder, the Escrow Agent shall keep proper books of record and account, in which full and correct entries shall be read into made of all receipts, disbursements and investment activity in the Escrow Account.
(d) The Escrow Agent shall not be bound by any modification of this Escrow Agreement against affecting the rights, duties and obligations of the Escrow Agent, unless such modification shall be in writing and signed by the other parties hereto, and the Escrow Agent shall have given its prior written consent thereto. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach modification of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, Agreement unless the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service have received written notice thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant resign as escrow agent at any time by giving forty-five (45) days written notice by registered or certified mail to the advice Buyer and the Seller Representative and such resignation shall take effect at the end of counsel with respect such forty-five (45) days or upon earlier appointment of a successor. A successor escrow agent hereunder may be appointed by designation in writing signed by the Buyer and the Seller Representative. The Buyer and the Seller Representative undertake to utilize their reasonable efforts to arrange for the appointment of a successor escrow agent. If any matter relating to this Escrow Agreement and instrument of acceptance by a successor escrow agent shall not be liable have been delivered to the Escrow Agent within sixty (60) days after the giving of such notice of resignation, the resigning Escrow Agent may, at the shared expense of the Buyer, on the one hand, and the Sellers, on the other, petition any court of competent jurisdiction for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or the appointment of a breach of this Escrow Agreementsuccessor escrow agent.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide If at any time hereafter the Escrow Agent with appropriate W-9 forms for tax identification number certification shall resign, be removed, be dissolved or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination otherwise become incapable of this Escrow Agreement acting, or the resignation bank or trust company acting as the Escrow Agent shall be taken over by any government official, agency, department or board, or the position of the Escrow AgentAgent shall become vacant for any of the foregoing reasons or for any other reason, the Buyer and the Seller Representative shall appoint a successor escrow agent to fill such vacancy.
(g) The Escrow Agent makes no representation as Every successor escrow agent appointed hereunder shall execute, acknowledge and deliver to its predecessor, and also to the validityBuyer and the Seller Representative an instrument in writing accepting such appointment hereunder, valueand thereupon such successor escrow agent, genuineness or without any further act, shall become fully vested with all the collectibility rights, immunities and powers and shall be subject to all of any security or other documents or instrument the duties and obligations, of its predecessor; and every predecessor escrow agent shall deliver all property and moneys held by or delivered it hereunder to itits successor. Each predecessor escrow agent shall be paid any outstanding fees and expenses prior to transferring all property and moneys held by it to a successor escrow agent.
(h) The fee charged by the Escrow Agent for performing its services hereunder shall not be called upon to advise paid one-half by the Buyer and one-half by the Sellers. Except as provided in Section 7(i), the Buyer, on the one hand, and the Sellers, on the other, shall share equally any party as to reasonable out-of-pocket costs and expenses incurred by the wisdom Escrow Agent in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited performing its duties hereunder. This covenant shall survive termination of this Agreement.
(i) The Escrow Agent (Buyer and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent Sellers shall, jointly designated by the other parties hereto in writingand severally, or to any court of competent jurisdiction, whereupon indemnify and hold the Escrow Agent shall be discharged of harmless from and from against any and all further obligations arising expenses (including reasonable attorneys' fees), liabilities, claims, damages, actions, suits or other charges ("Agent Claims") incurred by or assessed against the Escrow Agent for any act or omission by the Escrow Agent in connection with this the performance of the Escrow AgreementAgent's duties hereunder, except such which result from the Escrow Agent's bad faith, gross negligence or willful misconduct. The With respect to any Agent Claims payable hereunder, the Buyer and the Sellers agree that between them, such Agent Claims shall be paid one-half by the Buyer and one-half by the Sellers. This indemnity shall survive the resignation or removal of the Escrow Agent will take effect on or the earlier termination of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdictionthis Agreement.
(j) The Escrow Agent Agent's fees shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein be as a means to resolve disputes and may rely without any liability upon the contents thereofset forth on Exhibit B hereto.
(k) In the event of any disagreement between the other The parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that to this Agreement hereby authorize the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse funds from the Escrow Funds in accordance with such order or agreementthe provisions of this Section 7(k). Any court order referred to in clause (i) above disbursement hereunder shall be accompanied made by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained hereinby issuing a check or checks or, in the event of any dispute between the parties hereto a single disbursement in excess of $100,000 to a single payee, by fedwire transfer, as designated by such payee in an original writing, signed and delivered to the facts Escrow Agent. Such writing shall indicate the Escrow Funds account name and number and (i) in the case of defaultcheck(s), the validity or meaning name of these instructions or any other fact or matter relating each payee and the amount payable to such payee and (ii) in the transaction between case of a fedwire transfer, the partiesname and account number of the recipient, the name, address and ABA routing number of the recipient's bank and the amount to be transferred to such recipient. In the case of fedwire transfers instructions, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation expressly authorized to act, except as rely on the account numbers and to ABA routing numbers identified in the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) abovewritten instructions.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Interline Brands, Inc./De)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under Notwithstanding any duty provision contained herein to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liablecontrary, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly including its officers, directors, employees and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all lossesagents, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.shall:
(da) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be held liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from under this Escrow Agreement so long as it shall be subject to withholding regulations then have acted in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) good faith and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.without gross negligence;
(gb) The Escrow Agent makes have no representation as responsibility to inquire into or determine the validitygenuineness, valueauthenticity, genuineness or the collectibility sufficiency of any security securities, check, or other documents or instrument held by or delivered instruments submitted to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising it in connection with its duties hereunder;
(c) be entitled to deem the signatories of any documents or instruments submitted to it hereunder as being those purported to be authorized to sign such documents or instruments on behalf of the parties hereto and shall be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and without requiring substantiating evidence of any kind;
(d) be entitled to refrain from taking any action contemplated by this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or Agreement in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event becomes aware of any dispute disagreement between the parties hereto as to any facts or as to the facts happening of defaultany contemplated event precedent to such action;
(e) have no responsibility or liability for any diminution in value of any assets held hereunder which may result from any investment or reinvestment made in accordance with any provision which may be contained herein;
(f) be entitled to compensation for its services hereunder as per Exhibit C attached hereto and for reimbursement of its out-of-pocket expenses including, but not by way of limitation, the validity reasonable fees and costs of attorneys or meaning agents which it may find necessary to engage in performance of these instructions its duties hereunder, to be paid in full by Purchaser, except that any sales loads, fees or transaction charges assessed by The Vanguard Group ("Vanguard Charges") shall be paid out of the Escrow Fund;
(g) be entitled to set off and apply the Escrow Fund against any other fact or matter relating fees and expenses to the transaction between the parties, which the Escrow Agent is instructed as follows:entitled hereunder and which are due and owing, but only after the Escrow Agent has given notice requesting payment thereof to Sellers' Representative and Purchaser and such fees and expenses remain unpaid for 60 days following the date of receipt by Sellers' Representative and Purchaser of such notice. The Escrow Agent shall promptly notify Sellers' Representative and Purchaser after any such setoff and application made by the Escrow Agent, and Purchaser shall promptly reimburse the Escrow Fund for the amount of such setoff, except that Sellers shall promptly reimburse the Escrow Fund for the amount of such setoff where such setoff is incurred due to Vanguard Charges;
(ih) That it shall be under no obligation to act, except as and to invest the extent directed under process deposited funds or order of court, or the income generated thereby until it has been adequately indemnified to its full satisfactionreceived a U.S. Internal Revenue Service Form W-9 (or W-8, if applicable) from Sellers;
(i) be, and hereby is, jointly and severally indemnified and saved harmless by the other parties hereto from all loss, costs, and expenses, including attorney's fees, which may be incurred by it as a result of its involvement in any litigation arising from the performance of its duties hereunder, provided that such litigation shall sustain no liability not have resulted from any action taken or omitted by it and for its failure which it shall have been adjudged to act pending have acted in bad faith or to have been grossly negligent; such process indemnification shall survive termination of this Escrow Agreement and the resignation or court order or indemnification; andremoval of the Escrow Agent pursuant to Section 10 hereof until extinguished by any applicable statute of limitation. As between Sellers and Purchaser, each shall be responsible for one-half of such indemnification obligations;
(iij) That it may in its sole and absolute discretion, deposit the property herein event any dispute shall arise between the parties with respect to the disposition or so much thereof as remains in its hands with the then Clerk, or acting Clerk, disbursement of any of the District Court assets held hereunder, be permitted to interplead all of the City and County assets held hereunder into a court of Denver, State of Colorado, interplead the parties heretocompetent jurisdiction, and upon so depositing such property thereafter be fully relieved from any and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as or obligation with respect to the property so deposited, and furthermore, the such interpleaded assets. The other parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves further agree to the jurisdiction of said court and do hereby appoint the then Clerk, pursue any redress or acting Clerk, of said court as their Agent for the service of all process recourse in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of a dispute, without making the Escrow Agent under Section 4(c) above.a party to same unless required by applicable law;
(mk) The Company agrees to pay the Escrow Agent only have those duties as compensation for the services of the Escrow Agent hereunderare specifically provided herein, a fee of $1,500 as payment which shall be deemed purely ministerial in full for the services to nature;
(l) neither be rendered by the Escrow Agent hereunder. In additionresponsible for, nor chargeable with knowledge of, the Company agrees to pay all reasonable expensesterms and conditions of any other agreement, disbursements and advances incurred instrument, or made by document between the Escrow Agent other parties hereto, in performance of its duties hereunder (including reasonable feesconnection herewith, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports the Asset Purchase Agreement and promotional materials) which mentions shall be required to act only pursuant to the terms and provisions of this Escrow Agent's name or Agreement. This Escrow Agreement sets forth all matters pertinent to the rights, powers or duties escrow contemplated hereunder and no additional obligations of the Escrow Agent shall be issued implied from the terms of this Escrow Agreement or any other agreement;
(m) use Canf▇▇▇▇ ▇▇▇hnologies, Inc.'s federal employer identification number (22-1▇▇▇▇▇▇) ▇▇ the taxpayer identification number for all investments of the Escrow Fund and, to the extent applicable, for Form 1099 or Schedule K-1 reporting purposes, until such times as the Sellers' Representative shall notify the Escrow Agent of a different taxpayer identification number;
(n) have the right, but not the obligation, to consult with counsel of choice and shall not be liable for action taken or omitted to be taken by Escrow Agent either in accordance with the other parties hereto advice of such counsel or on such parties' behalf unless in accordance with any opinion of counsel to the Purchaser and Sellers addressed and delivered to the Escrow Agent;
(o) have the right to perform any of its duties hereunder through agents, attorneys, custodians or nominees. Any banking association or corporation into which the Escrow Agent may be merged, converted or with which the Escrow Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent shall first have given its specific written consent be a party, or any banking association or corporation to such mention(s)which all or substantially all of the corporate trust business of the Escrow Agent shall be transferred, which consent shall not be unreasonably withheld succeed to all the Escrow Agent's rights, obligations and immunities hereunder without the execution or delayedfiling of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; and The immunities and protection and right to indemnification listed in this Section 8, together with the Escrow Agent's right to compensation, shall survive the termination of this Agreement and the Escrow Agent's resignation or removal.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrow Funds Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct, and, except with respect to claims based upon such gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds cash held by it hereunder in good faith, in accordance with the terms hereof, including, including without limitation, limitation any liability for any delays (not resulting from its gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct) in the investment or reinvestment of the Escrow FundsEscrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume assume, if in good faith, that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunderonly. Any payments of income from this the Escrow Agreement Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax identification I.D., number certification certification, or nonresident non-resident alien certifications. This Section 4(fparagraph (f) and paragraph (c) of this Section 4(c) 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agentescrow agent) may at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign as by giving written notice to such by delivering effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Funds Agent shall deliver the Escrowed Property to any successor Escrow Agent escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdictionjurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent will shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which that is 30 days after the date of delivery delivery: (A) to the Escrow Agent of its written the other parties' notice of resignation termination or (B) to the other parties heretohereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor Escrow Agentescrow agent, the Escrow Agent's sole responsibility after that time shall be to safekeep keep the Escrow Funds Escrowed Property safe until receipt of a designation of successor Escrow Agent escrow agent or a joint written disposition instruction by the other parties hereto or a final any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrow FundsEscrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds Escrowed Property until the Escrow Agent shall have received (i) a final nonappealable and non- appealable order of a court of competent jurisdiction directing delivery of the Escrow Funds Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrow FundsEscrowed Property, in which event the Escrow Agent shall disburse the Escrow Funds Escrowed Property in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealablenon-appealable. The Escrow Agent shall act on such court order and legal opinions opinion without further question.
(l) Notwithstanding anything As consideration for its agreement to the contrary contained herein, in the event of any dispute between the parties hereto act as to the facts of defaultEscrow Agent as herein described, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent fees determined in accordance with the terms set forth on Exhibit F hereto (made a part of this Escrow Agreement as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunderif herein set forth). In addition, the Company agrees to pay reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, prospectusesthe Registration Statement, the Prospectus, notices, reports and promotional materialsmaterial) which mentions the Escrow Agent's name or the rights, powers powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to such mention(s), which consent shall not be unreasonably withheld or delayedthe use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Member Representative acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation the Merger Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility or duty to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrow Funds held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all in the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent’s gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any other agreement among such loss or damage and regardless of the parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, except for its own gross negligencesecurities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, willful misconduct securities intermediary or breach of this Escrow Agreement, and, except with respect other subescrow agent has to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, except to the extent that such action or omission of any book-entry depository, securities intermediary or other parties hereto shall jointly and severally indemnify and hold harmless subescrow agent was caused by the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment ’s own gross negligence or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or in breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderis hereby authorized, judgment, certification, demand, notice, instrument in making or other writing delivered to it hereunder without being required to determine the authenticity or the correctness disposing of any fact stated therein investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as a subagent of the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon or for any instrument third person or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do sodealing as principal for its own account.
(e) The Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrow Property (or take other action that may act pursuant be called for hereunder to be taken by the advice Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Agreement in good form, or (ii) passage of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken the applicable time period (or omitted in accordance with such adviceboth, except for any action constituting gross negligence, willful misconduct or a breach as applicable under the terms of this Escrow Agreement), as the case may be.
(f) The Escrow Agent is serving as escrow holder only Unless and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as except to the validityextent otherwise expressly set forth herein, valueall deposits and payments hereunder, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as pursuant to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor terms hereof (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory limitation all payments to the Escrow Agent pursuant to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained hereinSection 8), in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) aboveU.S. dollars.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Concerning the Escrow Agent. (aA) The Escrow Agent shall not be under any duty to give the Escrow Funds Shares held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreementproperty.
(bB) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct) in the investment or reinvestment of the Escrow FundsShares, or any loss of interest incident to any such delays.
(dC) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any the person purporting to give notice receipt or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
(eD) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted by it in good faith in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(fE) The Escrow Agent is serving as escrow holder only and has no does not have any interest in the Escrow Funds Shares deposited hereunderhereunder but is serving as Escrow Agent only and having only possession thereof. Any payments of income from this Escrow Agreement Shares shall be subject to withholding regulations then in force with respect to United States taxes. The Company parties hereto will provide the Escrow Agent with appropriate Internal Revenue Service Forms W-9 forms for tax identification number certification certification, or nonresident non- resident alien certificationscertifications and a form of Shareholder "Non-Objection" Letter hereto attached as Exhibit A and Exhibit B, respectively. This Section 4(f4(e) and Section 4(c4(b) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(gF) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility collectability of any security or other documents document or instrument held by or delivered to it.
(hG) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(iH) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds Shares to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (ia) the appointment of a successor (including a court of competent jurisdiction) or (iib) the day which is 30 thirty (30) days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep retain and safeguard the Escrow Funds Shares until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kI) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, Shares or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds Shares until the Escrow Agent shall have received (i) a final nonappealable non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Funds Shares or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow FundsShares, in which event the Escrow Agent shall disburse the Escrow Funds Shares in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(lJ) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Award shall pay Escrow Agent is instructed as follows:
compensation (i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full full) for the services to be rendered by the Escrow Agent hereunder. In addition, hereunder pursuant to the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).fee schedule attached hereto as Exhibit C.
(nK) No printed or The other matter in parties hereto authorize Escrow Agent, for any language (securities held hereunder, to use the services of any United States central securities depository it reasonably deems appropriate, including, without limitation, prospectusesthe Depository Trust Company and the Federal Reserve Book Entry System.
(L) Escrow Agent may resign at any time upon giving at least thirty (30) days written notice to the Parties; provided, noticeshowever, reports that no such resignation shall become effective until the appointment of a successor escrow agent which shall be accomplished as follows: The Parties shall use their best efforts to mutually agree on a successor escrow agent within thirty (30) days after receiving such notice. If the Parties fail to agree upon a successor escrow agent within such time, Escrow Agent shall have the right to appoint a successor escrow agent authorized to do business in the state of California. The successor escrow agent shall execute and promotional materials) which mentions deliver an instrument accepting such appointment and it shall, without further acts, be vested with all the Escrow Agent's name or the estates, properties, rights, powers or powers, and duties of the predecessor escrow agent as if originally named as escrow agent. Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless discharged from any further duties and liability under this Agreement.
(M) Any company into which the Escrow Agent may be merged or with which it may be consolidated, or any company to whom Escrow Agent may transfer a substantial amount of its Global Escrow business, shall first have given its specific written consent be the Successor the Escrow Agent without the execution or filing of any paper or any further act on the part of any of the Parties, anything herein to such mention(s), which consent shall not be unreasonably withheld or delayedthe contrary notwithstanding.
Appears in 1 contract
Sources: Escrow Agreement (Award Software International Inc)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds Shares or other property or funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of in this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement agreement, including, but not limited to, the Purchase Agreement, among the other parties hereto except this Agreement, even if the Escrow AgreementAgent has knowledge of the existence of such agreement or the terms or provisions thereof, Escrow Agent's only duty, liability and responsibility under this Agreement being to receive, hold and deliver the Escrow Shares as provided herein.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agentmisconduct. The Buyer, the other parties hereto shall jointly Sellers and severally the Shareholders agree to indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, costs, expenses, damages, liabilities, claims, actions, damages suits, and expensesjudgments whatsoever (including, including but not limited to, consequences arising in whole or in part from the negligence of the Escrow Agent or the alleged negligence of the Escrow Agent and including, among other things, court costs and reasonable attorney's attorney fees and disbursementsparalegal fees incurred in connection therewith) which the Escrow Agent may incur (or which may be claimed or asserted against the Escrow Agent by any person or entity whatsoever), together with all reasonable expenses resulting from the compromise or defense of any such asserted claims or liabilities, whatsoever arising out of and of, from, as a result of, or in any manner in connection with the execution, delivery, consummation or performance by the Escrow Agent, of this Agreement; provided, however, that neither Buyer, the Sellers, nor the Shareholders Seller shall be required to indemnify the Escrow AgreementAgent for any claims damages, losses, liabilities, costs or expenses to the extent caused by the willful misconduct or gross negligence of the Escrow Agent, as determined in a final nonappealable order by a court of competent jurisdiction. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its own gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct) in the investment or reinvestment of the Escrow Fundssuch funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument instrument, arbitration award or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(e) The Escrow Agent may execute any of the powers granted under this Agreement and perform any of the duties by or through attorneys, agents, employees, accountants or other experts but will be answerable for the conduct of these parties in accordance with the standards provided in this Agreement and shall be entitled to act pursuant to upon the opinion or advice of counsel its counsel, accountant and other expert concerning all matters under this Agreement, and may in all cases pay compensation to all attorneys, agents, employees, accountants and other experts as may reasonably be employed in connection with respect to any matter relating to this Agreement. The Escrow Agreement Agent may act upon an opinion of its counsel, accountant and other expert and shall not be liable responsible for any loss or damage resulting from any action or nonaction by it taken or omitted to be taken in accordance with good faith in reliance upon such adviceopinion of counsel, except for any action constituting gross negligence, willful misconduct accountant or a breach of this Escrow Agreementother expert.
(f) The Escrow Agent does not have any interest in the Escrow Shares or other funds or property held by it hereunder but is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agenthaving only possession thereof.
(g) The Escrow Agent makes no representation as to the validity, value, value or genuineness or the collectibility of any security or other amounts, documents or instrument instruments held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from taking any action with respect to any securities shares or other property amounts deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds Shares and other funds and property held by it hereunder to any successor Escrow Agent jointly designated by the other parties hereto Shareholders' Agent and the Buyer in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 thirty (30) days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds Shares until receipt of a designation of successor Escrow Agent or pursuant to a joint written disposition instruction by the other parties hereto Joint Instruction or a final order of a court of competent jurisdictionjurisdiction or of the arbitrators referred to in Section 7 hereof.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators any arbitrator or any third party contemplated herein as a means to resolve disputes and may rely in good faith without any liability upon the contents thereof.
(k) In the event of any disagreement between among the other parties hereto Shareholders, the Buyer, the Sellers, and/or any person, firm, or entity resulting in a controversy with respect to this Agreement or in adverse claims or demands being made in connection with the Escrow FundsShares or other funds or property held by it hereunder, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds Shares or other funds or property held by it hereunder until the Escrow Agent shall have received (i) a final nonappealable decision of the arbitrators referred to in Section 7 hereof directing the delivery of the Escrow Shares or other funds or property held by it hereunder; (ii) a Joint Instruction directing delivery of the Escrow Shares or other funds or property held by it hereunder; or (iii) a final non-appealable order of a court of competent jurisdiction directing the delivery of the Escrow Funds Shares or (ii) a written agreement executed other funds or property held by the other parties hereto directing delivery of the Escrow Fundsit hereunder. Alternatively, in which the event of such a disagreement among the Shareholders, the Buyer, the Sellers and/or any other person, firm or entity, the Escrow Agent shall disburse have the Escrow Funds right (but not the obligation) to institute a bill of interpleader in accordance with such order or agreement. Any any court order referred of competent jurisdiction to in clause determine ▇▇▇ rights of the parties hereto (i) above shall be accompanied by a legal opinion the right of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The institute such bill of interpleader shall not, however, be deemed to modify the manner ▇▇ ▇hich the Escrow Agent shall act on is entitled to make disbursements of the Escrow Amount as hereinabove set forth other than to tender the Escrow Amount into the registry of such court order court). Should a bill of interpleader be instituted, then as between themselves and legal opinions without further questionthe E▇▇▇▇w Agent, the Buyer, the Sellers, and the Shareholders, jointly and severally, hereby bind and obligate themselves, their successors, heirs, executors and assigns to pay the Escrow Agent its reasonable attorneys fees and costs in any and all other disbursements, expenses, losses, costs and damages of the Escrow Agent in connection with or resulting from such litigation.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of defaultThe Buyer, the validity Sellers, and Shareholders each agree that, prior to or meaning contemporaneous with the Escrow Agent's execution of these instructions or any other fact or matter relating to this Agreement and without the transaction between the parties, need for a submission by the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermorean invoice therefore, the parties hereto for themselves, their heirs, legal representatives, successors Buyer and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Shareholders' Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to will each pay the Escrow Agent one-half of its first Annual Escrow Agent Administration Fee, as compensation for the services of set forth in Exhibit B hereto, which Exhibit B is incorporated herein by reference as though fully set forth herein, and that, prior to or contemporaneous with the Escrow Agent hereunder, Agent's execution of this Agreement and without the need for a fee of $1,500 as payment in full for the services to be rendered submission by the Escrow Agent hereunder. In additionof an invoice therefore, the Company agrees to Buyer and Shareholders' Agent will each reimburse the Escrow Agent for one-half of its Legal Fees and Expenses Incurred by Escrow Agent in Initial Review of Agreement, as set forth in Exhibit B hereto. The Buyer, the Sellers, and Shareholders each further agree that the Buyer and Shareholders' Agent will each thereafter pay the Escrow Agent one-half of its customary fees payable for acting as Escrow Agent under this Agreement, as set forth in Exhibit B hereto, and that the Buyer and Shareholders' Agent will each reimburse the Escrow Agent for one-half of all reasonable expenses, disbursements ordinary and advances necessary expenses incurred or made by the Escrow Agent in performance carrying out the terms of its duties hereunder (including reasonable feesthis Agreement. Except as otherwise provided for the initial payments in the first sentence of this subparagraph, such fees and reimbursements of expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of shall be paid directly to the Escrow Agent shall be issued by promptly upon receipt of periodic invoices therefor. In the other parties hereto or on such parties' behalf unless event the Escrow Agent shall first have given is required by the terms of this Agreement or otherwise deems it necessary or advisable in fulfillment of its specific written consent responsibilities hereunder to take actions beyond those which are routinely performed by escrow agents under similar escrow agreements, the Buyer and Shareholders' Agent each also agree that they will each pay the Escrow Agent one-half of its reasonable fees for its services in such mention(s), which consent shall not be unreasonably withheld or delayed.regard and each will reimburse the Escrow Agent for one-half of its reasonable expenses incurred by the Escrow Agent in connection
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Parent that:
(a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of in this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of any representations, warranties or covenants contained in this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages damages, and expenses, including reasonable attorney's attorneys' fees and disbursements, arising out of of, and in connection with with, this Escrow Agreement. Without limiting the foregoing, the The Escrow Agent shall in no event be liable in connection with its investment or reinvestment have a lien of the amount of any Escrow Funds such expense or loss on the Escrowed Property held by it hereunder in good faith, in accordance with and shall be entitled to reimburse itself from such Escrowed Property for the terms hereof, including, without limitation, amount of any liability for such expense or loss agreed upon by the parties or pursuant to a court order. This paragraph (c) and paragraphs (f) and (e) of this Article IV shall survive notwithstanding any delays (not resulting from its gross negligence, willful misconduct or breach termination of this Escrow Agreement) in Agreement or the investment or reinvestment resignation of the Escrow Funds, or any loss of interest incident to any such delaysAgent.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument instrument, or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume assume, if in good faith, that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder, but is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunderonly. Any payments of income from this the Escrow Agreement Account shall be subject to withholding regulations then in force with respect to applicable United States or other taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness genuineness, or the collectibility of any security or other documents or instrument held by by, or delivered to to, it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agentescrow agent) may at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by Parent and the Company or at any time may resign as by giving five (5) days written notice to such by delivering effect to Parent and the Company. Upon any such termination or resignation, the Escrow Funds Agent shall deliver the Escrowed Property to any successor Escrow Agent escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdictionjurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent will shall take effect on the earlier of (iA) the appointment of a successor (including a court of competent jurisdiction) or (iiB) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be delivery of the Escrowed Property to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdictionjurisdiction in accordance with paragraph (i) of this Article IV.
(j) The Escrow Agent shall have no responsibility for deliver to the contents of any writing parties monthly statements of the arbitrators or any third party contemplated herein as a means balance in the Escrow Accounts and the amount subject to resolve disputes and may rely without any liability upon the contents thereofclaims.
(k) In the event of any disagreement among or between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow FundsEscrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds Escrowed Property until the Escrow Agent shall have received (iA) a final nonappealable and non-appealable order of the Arbitrator or a court of competent jurisdiction directing delivery of the Escrow Funds Escrowed Property or (iiB) a written agreement executed by the other parties hereto directing delivery of the Escrow FundsEscrowed Property, in which event the Escrow Agent shall disburse the Escrow Funds Escrowed Property in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything As consideration for its agreement to the contrary contained herein, in the event of any dispute between the parties hereto act as to the facts of defaultEscrow Agent as herein described, the validity or meaning of these instructions or any other fact or matter relating to Parent and the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it Company shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to each pay the Escrow Agent as compensation for the services 50% of the fees determined in accordance with the terms set forth on Exhibit A hereto (and made a part of this Escrow Agent hereunder, a fee of $1,500 Agreement as payment in full for the services to be rendered by the Escrow Agent hereunderif herein set forth). In addition, Parent and the Company agrees each agree to pay reimburse the Escrow Agent for 50% of all reasonable expenses, disbursements disbursements, and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses expenses, and disbursements of its counsel).
(nm) No printed publicly distributed material or other matter in any language (including, without limitation, prospectuses, notices, reports notices and promotional materialsreports) which mentions the Escrow Agent's name or the rights, powers powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedthereto.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall have no implied duties or obligations under the terms of this Escrow Agreement or otherwise. The Escrow Agent shall not be under charged with or be deemed to have any duty knowledge or notice of any notice, fact or circumstance not specifically set forth in this Escrow Agreement or furnished to give the Escrow Funds held by it hereunder any greater degree Agent in notices provided to the Escrow Agent in writing and strictly in accordance with the notice provisions of care than it gives its own similar property and this Escrow Agreement. Except as expressly provided for herein, the Escrow Agent shall not be required to invest take notice of any funds held hereunder except as directed agreement or understanding, including but not limited to the Merger Agreement, other than this Escrow Agreement and shall have no duty or responsibility to take any action pursuant to Section 1 of the terms thereof. In performing its duties under this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all , or upon the duties of claimed failure to perform its duties, the Escrow Agent shall have no liability except for the Escrow Agent’s willful misconduct or gross negligence. In no event shall the Escrow Agent be liable for incidental, indirect, special, consequential or punitive damages. The Escrow Agent shall not be obligated to take any legal action or to commence any proceedings in connection with this Escrow Agreement or any property held hereunder or to appear in, prosecute or defend in any such legal action or proceedings. The Escrow Agent shall have no liability with respect to the transfer or distribution of any Escrow Amount or funds effected by the Escrow Agent pursuant to wiring or transfer instructions provided to the Escrow Agent in accordance with the provisions of this Agreement. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and all matters pertinent hereto. No implied duties or obligations in the exercise of its own best judgment, and may rely conclusively and shall be read into this Escrow Agreement against protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is reasonably believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Escrow Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its written consent thereto. The Escrow Agent shall be entitled to rely conclusively and without further inquiry on all calculations of amounts set forth in Joint Written Directions, certificates and notices delivered by HBI or the Representative to the Escrow Agent pursuant to this Agreement. The Escrow Agent shall in no event be deemed to be a fiduciary to any party or any other person or entity under this Escrow Agreement. The permissive rights of the Escrow Agent to do things enumerated in this Escrow Agreement shall not be construed as duties. The Escrow Agent shall not be responsible or liable for the failure of any party (other than the Escrow Agent) to perform in accordance with this Escrow Agreement. The Escrow Agent shall have no liability with respect to the transfer or distribution of any funds effected by the Escrow Agent pursuant to wiring or transfer instructions provided to the Escrow Agent in accordance with the provisions of this Escrow Agreement. The Escrow Agent shall not be obligated to take any legal action or to commence any proceedings in connection with this Escrow Agreement or any property held hereunder or to appear in, prosecute or defend in any such legal action or proceedings. The Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of this Escrow Agreement or any part thereof, or of any person executing or depositing such subject matter. No provision of this Escrow Agreement shall require the Escrow Agent to risk or advance its own funds or otherwise incur any financial liability or potential financial liability in the performance of its duties or the exercise of its rights under this Escrow Agreement. The Escrow Agent shall be entitled to seek the advice of legal counsel with respect to any matter arising under this Escrow Agreement. The Escrow Agent shall be entitled to reimbursement from the Escrow Amount for the reasonable and documented fees and expenses of any such legal counsel. The Escrow Agent shall in no way be responsible for nor shall it be its duty to notify any party or any other agreement among person or entity interested in this Escrow Agreement of any payment required or maturity occurring under this Escrow Agreement or under the terms of any instrument deposited herewith unless such notice is explicitly provided for in this Escrow Agreement. The Escrow Agent shall have no duty or obligation to make any formulaic calculations of any kind hereunder. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent and any director, officer or employee of the Escrow Agent may become financially interested in any transaction in which any of the parties may be interested and may contract and lend money to any party and otherwise act as fully and freely as though it were not escrow agent under this Escrow Agreement. Nothing herein shall preclude the Escrow Agent from acting in any other capacity for any party hereto. The Escrow Agent shall make no disbursement, investment or other use of funds until and unless it has collected funds. The Escrow Agent shall not be liable for collection items until the proceeds of the same in actual cash have been received or the Federal Reserve has given the Escrow Agent credit for the funds.
(b) The Escrow Agent and each of its officers, directors, agents, and employees shall be indemnified and held harmless by HBI and the Representative (up to the amount of the Escrow Amount) from and against any and all losses, damages, costs and expenses, including counsel fees and disbursements, suffered or incurred by the Escrow Agent or any of such persons directly or indirectly by virtue of or in connection with this Escrow Agreement or any action, suit or other proceeding involving any claim which in any way, directly or indirectly, arises out of or relates to this Agreement, the services of the Escrow Agent hereunder, or the Escrow Amount held by it hereunder, other than expenses or losses arising from the gross negligence or willful misconduct of the Escrow Agent. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall notify the other parties hereto in writing. In the event of the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow Amount or it may deposit the Escrow Amount with the clerk of any appropriate court or it may retain the Escrow Amount pending receipt of a final, non-appealable order of a court having jurisdiction over all of the parties hereto except directing to whom and under what circumstances the Escrow Amount is to be disbursed and delivered. The provisions of this Section 6(b) shall survive the termination of this Agreement or any resignation or removal of the Escrow Agent, as contemplated elsewhere in this Agreement.
(c) The Escrow Agent shall be entitled to fees for services rendered by it hereunder and for reimbursement of all expenses and costs of the Escrow Agent paid or incurred by it in the administration of its duties hereunder including, but not limited to, all counsel, advisors’ and agents’ fees and disbursements and all taxes or other governmental charges, all as set forth in Exhibit A hereto, which is incorporated herein by reference and made a part hereof. HBI and the Representative agree to pay to the Escrow Agent such fees and reimbursement of such expenses; provided, however, that solely as between HBI and the Representative, the first $10,000.00 of such fees and expenses shall be liablepayable by HBI and any such fees and expenses in excess of $10,000.00 shall be payable from the Escrow Amount, except for its own gross negligencewith respect to which the Escrow Agent shall have a lien and first priority right to payment of such amounts from the Escrow Amount.
(d) From time to time on and after the date hereof, willful misconduct HBI and the Representative shall deliver or breach cause to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent shall reasonably request to carry out more effectively the provisions and purposes of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct evidence compliance herewith or breach of this Escrow Agreement, to assure itself that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and it is protected in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do soacting hereunder.
(e) The Escrow Agent may act pursuant resign at any time and be discharged from its duties as escrow agent hereunder by its giving the other parties hereto written notice and such resignation shall become effective as hereinafter provided. Such resignation shall become effective at such time that the Escrow Agent shall turn over the Escrow Amount held hereunder to a successor escrow agent appointed by HBI and reasonably acceptable to the advice Representative. If no new escrow agent is so appointed within the sixty (60) day period following the giving of counsel such notice of resignation, the Escrow Agent may deposit the Escrow Amount with respect any court of competent jurisdiction and notify the parties hereto of such deposit and thereupon the Escrow Agent shall be disregarded from all further duties as Escrow Agent hereunder. The Escrow Agent shall have no duty to seek the appointment of any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreementsuccessor escrow agent.
(f) The Escrow Agent is serving shall resign and be discharged from its duties as escrow holder agent hereunder if so requested in writing at any time by HBI and the Representative, jointly; provided, however, that such resignation shall become effective only and has no interest upon acceptance of appointment by a successor escrow agent as provided in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent6(e).
(g) The Notwithstanding anything herein to the contrary, the Escrow Agent makes no representation as to the validity, value, genuineness shall not be relieved from liability hereunder for its own gross negligence or the collectibility of any security or other documents or instrument held by or delivered to itits own willful misconduct.
(h) The Escrow Agent shall not be called upon to advise any party As an additional consideration for and as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon an inducement for the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of to serve as the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which hereunder, it is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at understood and agreed that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In in the event of any disagreement between the parties to this Escrow Agreement or among them or any other parties hereto persons resulting in adverse claims or demands being made in connection with the or for any Escrow Funds, Amount or in the event that the other property held pursuant to this Escrow Agent in good faith is in doubt as to what action it should take hereunderAgreement, the Escrow Agent shall be entitled to retain entitled, at the sole discretion of the Escrow Funds until Agent, to refuse to comply with the demands of such parties, or any of such parties, so long as such disagreement shall continue. In such event, the Escrow Agent shall have received no obligation to make delivery or other disposition of any Escrow Amount or other property held pursuant to the terms of this Escrow Agreement or any part thereof. Anything herein to the contrary notwithstanding, the Escrow Agent shall not be or become liable to such parties or any of them for the failure of the Escrow Agent to comply with conflicting or adverse demands pertaining to funds or other property held pursuant to this Escrow Agreement.
(i) a final nonappealable order The Escrow Agent shall be entitled to continue to refrain and to refuse to deliver or otherwise dispose of funds or other property held pursuant to this Escrow Agreement or any part thereof or to otherwise act hereunder, as stated above, unless and until (i) the rights of such parties have been finally settled by binding arbitration or duly adjudicated in a court of competent having jurisdiction directing delivery of the Escrow Funds parties and the funds or other property held hereunder; or (ii) a written the parties have reached an agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event resolving their differences and have jointly notified the Escrow Agent shall disburse in writing of such agreement. Without limiting the applicability of Section 6(b) of this Escrow Agreement, the Escrow Funds Agent will be indemnified in accordance with such order or agreement. Any court order referred to Section 6(b) for any action taken in accordance with the notification referenced in clause (iii) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. foregoing sentence.
(j) The Escrow Agent shall act on such court order and legal opinions without further questionhold the Escrow Amount in a non-interest bearing deposit account, which may be held at .
(lk) Notwithstanding anything to the contrary contained herein, in In the event of any dispute between the parties hereto or disagreement, as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the partiesdescribed above, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to acthave the right, except as and in addition to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, rights described above and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit at the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, election of the District Court Escrow Agent, to tender into the registry or custody of any court having jurisdiction, the Escrow Amount and property held under this Escrow Agreement and the Escrow Agent shall have the right to take such other legal action as may be appropriate or necessary, in the sole discretion of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing Escrow Agent. Upon such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermoretender, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of agree that the Escrow Agent shall be discharged from all further duties under Section 4(c) above.
(m) The Company agrees to pay the this Escrow Agent as compensation for the services of the Escrow Agent hereunderAgreement; provided, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In additionhowever, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in that any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties such action of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless not deprive the Escrow Agent shall first have given of its specific written consent compensation and right to reimbursement of expenses hereunder arising prior to such mention(s), which consent shall not be unreasonably withheld or delayedaction and discharge of the Escrow Agent of its duties hereunder.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not have no duties or responsibilities except those expressly set forth herein. The Escrow Agent may consult with counsel and shall have no liability hereunder except for its own negligence or willful misconduct. It may rely on any notice, instruction, certificate, statement, request, consent, confirmation, agreement or other instrument which it reasonably believes to be under any duty genuine and to give have been signed or presented by a proper person or persons.
(c) so long as the Escrow Agent shall have any obligation to pay any amount to the Shareholders and/or Buyer from the Escrowed Funds held by it hereunder any greater degree hereunder, the Escrow Agent shall keep proper books of care than it gives its own similar property record and account, in which full and correct entries shall be made of all receipts, disbursements and investment activity in the Escrow Account.
(d) The Escrow Agent shall not be required to invest bound by any funds held hereunder except as directed pursuant to Section 1 modification of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all affecting the rights, duties and obligations of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations Agent, unless such modification shall be read into this Escrow Agreement against in writing and signed by the other parties hereto, and the Escrow AgentAgent shall have given its prior written consent thereto. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach modification of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, Agreement unless the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service have received written notice thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant resign as escrow agent at any time by giving thirty (30) days written notice by registered or certified mail to Buyer and the Shareholders' Representative and such resignation shall take effect at the end of such 30 days or upon earlier appointment of a successor. A successor escrow agent hereunder may be appointed by designation in writing signed by Buyer and the Shareholders' Representative. Buyer and the Shareholders' Representative shall undertake to utilize their best efforts to arrange for the appointment of a successor escrow agent. If any instrument of acceptance by a successor escrow agent shall not have been delivered to the advice Escrow Agent within sixty (60) days after the giving of counsel with respect to such notice of resignation, the resigning Escrow Agent may at the expense of Buyer and the Shareholders petition any matter relating to this Escrow Agreement and shall not be liable court of competent jurisdiction for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or the appointment of a breach of this Escrow Agreementsuccessor escrow agent.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide If at any time hereafter the Escrow Agent with appropriate W-9 forms for tax identification number certification shall resign, be removed, be dissolved or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination otherwise become incapable of this Escrow Agreement acting, or the resignation bank or trust company acting as the Escrow Agent shall be taken over by any government official, agency, department or board, or the position of the Escrow Agent.
(g) The Escrow Agent makes no representation as shall become vacant for any of the foregoing reasons or for any other reason, the Shareholders' Representative and Buyer shall appoint a successor escrow agent to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to itfill such vacancy.
(h) The fee charged by the Escrow Agent shall not be called upon to advise for performing its services hereunder, any party as reasonable out of pocket costs incurred by the Escrow Agent in performing its duties hereunder and any other amounts payable to the wisdom in selling or retaining or taking or refraining Escrow Agent pursuant hereto shall be paid one-half by the Buyer and one-half from any action with respect to any securities or other property deposited hereunderthe Escrowed Funds.
(i) The Escrow Agent (Buyer and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Shareholders shall indemnify and hold the Escrow Agent shall be discharged of harmless from and from against any and all further obligations arising in connection with this Escrow Agreement. The resignation of expenses (including reasonable attorneys' fees), liabilities, claims, damages, actions, suits or other charges ("Agent Claims") incurred by or assessed against the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) for anything done or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time omitted by the Escrow Agent has not received a designation in the performance of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep duties hereunder, except such which result from the Escrow Funds until receipt of a designation of successor Escrow Agent Agent's bad faith, gross negligence or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdictionwillful misconduct.
(j) The Escrow Agent Agent's fees shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or be in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act amounts set forth on such court order and legal opinions without further questionExhibit B hereto.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be have any liability to any of the parties to this Agreement or to any third party arising out of its services as Escrow Agent under any duty to give this Agreement, except for damages directly resulting from the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow AgreementAgent’s gross negligence or willful misconduct.
(b) This Escrow Agreement expressly sets forth all Upon any delivery or deposit with a court or successor escrow agent of the duties of Property in accordance with this Agreement, the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The fully and forever released and discharged from any liability for serving as Escrow Agent shall not be bound by the provisions of and from any other agreement among the parties hereto except further obligation under this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow AgentCompany, the other parties hereto Transferors and the Purchaser shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and hold it harmless against any and all lossesloss, liabilitiesliability, claims, actions, damages and expenses, damage or expense (including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, attorneys’ fees) that the Escrow Agent shall in no event be liable may incur as a result of acting as escrow agent under this Agreement, except for any loss, liability, damage or expense arising from its own gross negligence or willful misconduct. For this purpose, the term “attorneys’ fees” includes out-of-pocket fees payable to any counsel, including Loeb & Loeb LLP, retained by the Escrow Agent in connection with its investment or reinvestment of any Escrow Funds held by it hereunder services under this Agreement (other than fees incurred in good faith, in accordance connection with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach drafting and negotiation of this Escrow Agreement) in the investment or reinvestment of and, with respect to any matter arising under this Agreement as to which the Escrow FundsAgent performs legal services (other than fees incurred in connection with the drafting and negotiation of this Agreement), or any loss of interest incident to any such delaysits standard hourly rates and charges then in effect.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder under this Agreement without being required to determine the authenticity of, or the correctness of any fact stated therein in, that document and irrespective of any facts the Escrow Agent may know or the proprieties, validity or the service thereofbe deemed to know in any other capacity. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give any notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, this Agreement has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to shall have no duties or responsibilities except those expressly set forth in this Agreement. The Escrow Agreement and Agent shall not have any obligations arising out of or be liable for bound by the provisions of any action taken other agreement, written or omitted in accordance with such adviceoral, except for any action constituting gross negligenceincluding, willful misconduct or a breach of this Escrow but not limited to, the Option Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in All of the Escrow Funds deposited hereunder. Any payments Agent’s rights of income from indemnification provided for in this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent, its replacement by a successor Escrow Agent, its delivery or deposit of the Escrow in accordance with this Agreement, the termination of this Agreement, and any other event that occurs after the Effective Date.
(g) The If any dispute arises in connection with this Agreement, the Escrow Agent makes no representation as to may at any time commence an action in the validity, value, genuineness or the collectibility nature of any security interpleader or other documents or instrument held by or delivered to itlegal proceedings and may deposit the Property with the clerk of the court.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action have no responsibility with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such the sufficiency of the arrangements contemplated by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation Agreement to accomplish the intentions of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdictionparties.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Concerning the Escrow Agent. (a) Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation the Stock Purchase Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrow Funds held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all in the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent’s gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any other agreement among such loss or damage and regardless of the parties hereto except this Escrow Agreement.
form of action. (c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, except for its own gross negligencesecurities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, willful misconduct securities intermediary or breach of this Escrow Agreement, and, except with respect other subescrow agent has to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, except to the extent that such action or omission of any book-entry depository, securities intermediary or other parties hereto shall jointly and severally indemnify and hold harmless subescrow agent was caused by the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment ’s own gross negligence or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or in breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Stock Escrow Agreement
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree 72.1 Duties and Responsibilities of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent Agent's duties and responsibilities shall not be bound by subject to the provisions of any other agreement among following terms and conditions: i The Purchaser and the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, Company acknowledge and agree that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and i) shall not be required to inquire into whether the Purchaser, the Company or any successor Escrow Agentother party is entitled to receipt of any Document or all or any portion of the Escrowed Payment; (ii) from and against shall not be called upon to construe or review any and all lossesDocument or any other document, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and instrument or agreement entered into in connection with this Escrow Agreement. Without limiting therewith; (iii) shall be obligated only for the foregoing, performance of such duties as are specifically assumed by the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays pursuant to this Agreement; (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreementiv) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent may rely on and shall be entitled to rely protected in acting or refraining from acting upon any order, judgment, certification, demand, written notice, instrument instruction, instrument, statement, request or other writing delivered document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and ; (v) may assume that any person purporting to give notice or advice, accept receipt of make any statement or execute any document, or make any statement document in connection with the provisions hereof, hereof has been duly authorized to do so; (vi) shall not be responsible for the identity, authority or rights of any person, firm or company executing or delivering or purporting to execute or deliver this Agreement or any Document or any funds deposited hereunder or any endorsement thereon or assignment thereof; (vii) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (viii) may consult counsel satisfactory to Escrow Agent (including, without limitation, Loeb & Loeb, LLP or such other counsel of Escrow Agent's choosing), the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(e) ii The Purchaser and the Company acknowledge that the Escrow Agent may act pursuant to is acting solely as a stakeholder at their request and that the advice of counsel with respect to any matter relating to this Escrow Agreement and Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Purchaser and the Company hereby, jointly and severally, indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives from and against any and all actions taken or omitted to be taken by Escrow Agent or any of them hereunder and any and all claims, losses, liabilities, costs, damages and expenses suffered and/or incurred by the Escrow Agent arising in accordance with such adviceany manner whatsoever out of the transactions contemplated by this Agreement and/or any transaction related in any way hereto, including the fees of outside counsel and other costs and expenses of defending itself against any claims, losses, liabilities, costs, damages and expenses arising in any manner whatsoever out the transactions contemplated by this Agreement and/or any transaction related in any way hereto, except for any action constituting gross negligencesuch claims, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only losses, liabilities, costs, damages and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation expenses incurred by reason of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness 's gross negligence or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) willful misconduct. The Escrow Agent shall not be called upon to advise any party as owe a duty only to the wisdom Purchaser and the Company under this Agreement and to no other person. iii The Purchaser and the Company shall jointly and severally reimburse the Escrow Agent for its reasonable out-of-pocket expenses (including counsel fees (which counsel may be Loeb & Loeb LLP or such other counsel of the Escrow Agent's choosing) incurred in selling or retaining or taking or refraining from any action connection with respect the performance of its duties and responsibilities hereunder, which shall not (subject to any securities or other property deposited hereunder.
(iSection 4.1(b)) exceed $2,000. iv The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated hereunder by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of giving five (i5) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 business days after the date of delivery of its prior written notice of resignation to the other parties heretoPurchaser and the Company. If at that time Prior to the effective date of resignation as specified in such notice, the Purchaser and Company will issue to the Escrow Agent has not received a designation Joint Instruction authorizing delivery of the Documents and the Escrowed Payment to a substitute Escrow Agent selected by the Purchaser and the Company. If no successor Escrow Agent is named by the Purchaser and the Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and deposit the Escrow Agent's sole responsibility after that time shall be to safekeep Documents and the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection Escrowed Payment with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution clerk of any such court and/or otherwise commence an interpleader or similar action shall not impair for a determination of where to deposit the rights of the Escrow Agent under Section 4(c) abovesame.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely compensation for its services hereunder at its usual and customary rates, payable in advance on an annual basis upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or establishment of the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel escrow with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation all of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validityShares, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility reimbursed for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (hereunder, including reasonable fees, expenses the fees and disbursements of its counsel).
(n) No printed or other matter in any language (including. The payment of such fees, without limitationdisbursements, prospectuses, notices, reports expenses and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of advances to the Escrow Agent shall be issued borne by the other Company.
(b) The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving notice of such resignation to the Company and each Employee specifying a date not less than ten business days following the date of such notice when such resignation shall take effect. Upon such notice, a successor escrow agent shall be selected by the Company, such successor escrow agent to become the Escrow Agent hereunder upon the resignation date specified in such notice. The Escrow Agent shall continue to serve until its successor accepts the escrow and receives the Shares.
(c) The Escrow Agent undertakes to perform only such duties as are specifically set forth herein and may conclusively rely and shall be protected in acting or refraining from acting on any written notice, instrument or signature believed by it to be genuine and to have been signed or presented by the proper party or parties hereto duly authorized to do so. The Escrow Agent shall have no responsibility for the contents of any writing contemplated herein and may rely without any liability upon the contents thereof. Notwithstanding anything to the contrary in this Master Escrow Agreement, where any action is specified to be taken by the Escrow Agent upon delivery by the Company or on such parties' behalf unless an Employee (or both the Company and one or more Employees) of a notice, certificate or instructions to the Escrow Agent, the Escrow Agent shall first have given its specific written consent not be obligated to take any action until the appropriate party (or parties) has acted by delivering the certificate, notice or instructions to the Escrow Agent (none of which shall be binding upon the Escrow Agent unless in writing) as to the action to be taken hereunder indicating in writing that a copy of such mention(s)certificate, which consent notice or instructions has been delivered to the other party to this Master Escrow Agreement. It is acknowledged by the Company and each Employee that the Escrow Agent is bound only by the terms of this Master Escrow Agreement and the Escrow Agent may, but shall not be unreasonably withheld required to, use its discretion with respect to any matter that is the subject of this Master Escrow Agreement or delayedwith respect to instructions received under this Master Escrow Agreement.
(d) The Escrow Agent shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for action taken or omitted to be taken by it in good faith and in accordance with the advice of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistakes of fact or errors of judgment or for any acts or omissions of any kind unless caused by its own willful misconduct or gross negligence. In no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(e) The Company and each Employee hereby severally, but not jointly, agree to indemnify and hold harmless the Escrow Agent and its officers, employees and agents from and against any and all costs, damages, claims, liabilities, judgments and expenses (including reasonable attorney's fees) incurred by it in connection with or arising out of the performance of its obligations pursuant to this Master Escrow Agreement.
(f) Any corporation into which the Escrow Agent in its individual capacity may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent in its individual capacity shall be a party, or any corporation to which substantially all the corporate trust business of the Escrow Agent in its individual capacity may be transferred, shall be the Escrow Agent under the Escrow Agent Agreement without further act.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the parties hereto that:
(a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations on the part of the Escrow Agent shall be read into this Escrow Agreement against the Escrow AgentAgreement. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(cb) The Escrow Agent shall not be liable, except liable for any action or failure to act in its own capacity as Escrow Agent hereunder unless such action or failure to act shall constitute gross negligence, negligence or willful misconduct or breach on the part of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, in which case there shall be no indemnification obligations as provided in Paragraph 4, and the other parties hereto Escrow Agent shall jointly and severally indemnify and hold harmless the Escrow Agent (Seller, Buyer and any successor Escrow Agent) their respective officers, directors, agents and employees from and against any and all lossesloss, liabilities, claims, actions, damages and expenses, cost or expense (including reasonable attorney's fees and disbursements, arising out attorneys’ fees) that they may suffer or incur as a consequence of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment such gross negligence or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delaysmisconduct.
(dc) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder (collectively a “Notice”) without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent will confirm the receipt and content of any Notice with the other parties. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume assume, unless it has actual knowledge to the contrary, that any person purporting to give notice Notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(ed) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreementas provided in paragraph 7(b) above.
(fe) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject having only possession thereof, and is not charged with any duty or responsibility to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, determine the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution enforceability of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) abovedocument.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Stock Purchase Agreement (VOIS Inc.)
Concerning the Escrow Agent. To induce the Escrow Agent to act --------------------------- hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrow Funds Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct, and, except with respect to claims based upon such gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds cash held by it hereunder in good faith, in accordance with the terms hereof, including, including without limitation, limitation any liability for any delays (not resulting from its gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct) in the investment or reinvestment of the Escrow FundsEscrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume assume, if in good faith, that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunderonly. Any payments of income from this the Escrow Agreement Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax identification I.D., number certification certification, or nonresident non-resident alien certifications. This Section 4(fparagraph (f) and paragraph (c) of this Section 4(c) 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agentescrow agent) may at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign as by giving written notice to such by delivering effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Funds Agent shall deliver the Escrowed Property to any successor Escrow Agent escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdictionjurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent will shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which that is 30 days after the date of delivery delivery: (A) to the Escrow Agent of its written the other parties' notice of resignation termination or (B) to the other parties heretohereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor Escrow Agentescrow agent, the Escrow Agent's sole responsibility after that time shall be to safekeep keep the Escrow Funds Escrowed Property safe until receipt of a designation of successor Escrow Agent escrow agent or a joint written disposition instruction by the other parties hereto or a final any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrow FundsEscrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds Escrowed Property until the Escrow Agent shall have received (i) a final nonappealable and non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Funds Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrow FundsEscrowed Property, in which event the Escrow Agent shall disburse the Escrow Funds Escrowed Property in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealablenon- appealable. The Escrow Agent shall act on such court order and legal opinions opinion without further question.
(l) Notwithstanding anything As consideration for its agreement to the contrary contained herein, in the event of any dispute between the parties hereto act as to the facts of defaultEscrow Agent as herein described, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent fees determined in accordance with the terms set forth on Exhibit F hereto (made a part of this Escrow Agreement as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunderif herein set forth). In addition, the Company agrees to pay reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) The other parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, prospectusesthe Registration Statement, notices, reports and promotional materialsmaterial) which mentions the Escrow Agent's name or the rights, powers powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to such mention(s), which consent shall not be unreasonably withheld or delayedthe use of its name and the reference to the escrow arrangement in the Registration Statement.
Appears in 1 contract
Concerning the Escrow Agent. (a) 4.1. The Escrow Agent hereby waives its right to compensation for its services hereunder, but shall not be under any duty to give the Escrow Funds held reimbursed for all reasonable out-of-pocket expenses, disbursements and advances (including reasonable attorneys' fees and expenses if actually incurred by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent in connection with respect to any the use of outside attorneys) incurred or made by it in performance of its duties hereunder. Such disbursements, expenses and all matters pertinent hereto. No implied duties or obligations advances shall be read into this paid by the Parties equally.
4.2. The Escrow Agreement against Agent may resign and be discharged from its duties hereunder at any time by giving notice of such resignation to the Parties, and specifying a date (not less than 30 days after the giving of such notice) when such resignation shall take effect. Prior to the effective date of the resignation as specified in such notice, the Subscribers and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents, Subscriber Documents and Escrowed Payment to a substitute Escrow Agent selected by the Subscribers and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of California for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court. The Escrow Agent shall continue to serve until its successor accepts the escrow and receives the Agreements to the extent not be bound by theretofore delivered in accordance with the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable; provided, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreementhowever, that are successfully asserted against if no successor accepts the Escrow Agentescrow and receives the Agreements, to the other parties hereto shall jointly and severally indemnify and hold harmless extent not theretofore delivered in accordance within such 30-day period, then, upon the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out expiration of and in connection with this Escrow Agreement. Without limiting the foregoingsuch 30-day period, the Escrow Agent shall be relieved of its duties hereunder and shall retain the Documents and Payments solely as custodian.
4.3. The Escrow Agent undertakes to perform only such duties as are specifically set forth herein. Anything herein to the contrary notwithstanding, the Escrow Agent's sole duties under the Escrow Agreement shall be (i) to hold the Documents and Payments in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, escrow in accordance with the terms hereof, including(ii) to make reports required or appropriate under the Escrow Agreement, without limitation(iii) to make deliveries to the persons entitled thereto, any liability also as specified in such instructions or as provided in the Escrow Agreement, and (iv) to make determinations required hereunder. The Escrow Agent acting or refraining from acting in good faith shall not be liable for any delays (not resulting from mistake of fact or error of judgment by it or for any acts or omissions by it of any kind, unless caused by its willful misconduct or gross negligence, willful misconduct or breach of this Escrow Agreement) in and the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely and shall be protected in doing so, upon (i) any order, judgment, certification, demand, written notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice have been signed or advice, accept receipt of presented by the proper party or execute any document, or make any statement in connection with the provisions hereof, has been parries duly authorized to do so.
, and (eii) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not (which may be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement's own choosing). The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means submitted to resolve disputes it hereunder and may shall be entitled in good faith reasonably to rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable4.4. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything have the right to assume in the absence of written notice to the contrary contained herein, in from the event of any dispute between the parties hereto as to the facts of default, the validity proper person or meaning of these instructions or any other persons that a fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall an event by reason of which an action would or might be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered taken by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements does not exist and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (includinghas not occurred, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by incurring liability to the other parties hereto or on to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, in reliance upon such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedassumption.
Appears in 1 contract
Concerning the Escrow Agent. (a) Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation the Asset Purchase Agreement and Transition Services Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility or duty to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrow Funds held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all in the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent’s gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any other agreement among such loss or damage and regardless of the parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, except for its own gross negligencesecurities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, willful misconduct securities intermediary or breach of this Escrow Agreement, and, except with respect other subescrow agent has to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, except to the extent that such action or omission of any book-entry depository, securities intermediary or other parties hereto shall jointly and severally indemnify and hold harmless subescrow agent was caused by the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment ’s own gross negligence or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or in breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderis hereby authorized, judgment, certification, demand, notice, instrument in making or other writing delivered to it hereunder without being required to determine the authenticity or the correctness disposing of any fact stated therein investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as a subagent of the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon or for any instrument third person or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do sodealing as principal for its own account.
(e) The Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrow Property (or take other action that may act pursuant be called for hereunder to be taken by the advice Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Agreement in good form, or (ii) passage of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken the applicable time period (or omitted in accordance with such adviceboth, except for any action constituting gross negligence, willful misconduct or a breach as applicable under the terms of this Escrow Agreement), as the case may be.
(f) The Escrow Agent is serving as escrow holder only Unless and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as except to the validityextent otherwise expressly set forth herein, valueall deposits and payments hereunder, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as pursuant to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor terms hereof (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory limitation all payments to the Escrow Agent pursuant to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained hereinSection 5), in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) aboveU.S. dollars.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Hyperfeed Technologies Inc)
Concerning the Escrow Agent. (a) Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the other agreements referred to or described in this Agreement (including without limitation the Merger Agreement or the Loan Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility or duty to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel, absent gross negligence or willful misconduct.
(b) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrow Funds held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all in the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent’s gross negligence or willful misconduct. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any other agreement among such loss or damage and regardless of the parties hereto except this Escrow Agreementform of action, absent gross negligence or willful misconduct.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, except for its own gross negligencesecurities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, willful misconduct securities intermediary or breach of this Escrow Agreement, and, except with respect other subescrow agent has to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, except to the extent that such action or omission of any book-entry depository, securities intermediary or other parties hereto shall jointly and severally indemnify and hold harmless subescrow agent was caused by the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment ’s own gross negligence or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delaysmisconduct.
(d) The Escrow Agent shall be is hereby authorized, in making or disposing of any investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as a subagent of the Escrow Agent or for any third person or dealing as principal for its own account, provided that neither it nor its affiliates incur any expense or become entitled to rely upon receive any order, judgment, certification, demand, notice, instrument payment payable from the Escrow Property or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of by any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement Interested Party in connection with the provisions hereof, has been duly authorized to do sotherewith.
(e) The Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrow Property (or take other action that may act pursuant be called for hereunder to be taken by the advice Escrow Agent) sooner than (i) two (2) Business Days after it has received the applicable documents required under this Agreement, or (ii) passage of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken the applicable time period (or omitted in accordance with such adviceboth, except for any action constituting gross negligence, willful misconduct or a breach as applicable under the terms of this Escrow Agreement), as the case may be.
(f) The Escrow Agent is serving as escrow holder only Unless and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as except to the validityextent otherwise expressly set forth herein, valueall deposits and payments hereunder, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as pursuant to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writingterms hereof, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and including without limitation all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory payments to the Escrow Agent pursuant to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained hereinSection 6, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) aboveU.S. dollars.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Escrow Agreement (Thoratec Corp)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under Notwithstanding any duty provision contained herein to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liablecontrary, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly including its officers, directors, employees and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all lossesagents, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.shall:
(da) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted under this Agreement so long as it shall have acted in accordance with such advice, except for any action constituting good faith and without gross negligence, negligence or willful misconduct or a breach of this Escrow Agreement.misconduct;
(fb) The Escrow Agent is serving as escrow holder only and has have no interest in responsibility to inquire into or determine the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification genuineness, authenticity, or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility sufficiency of any security securities, checks or other documents or instrument held by or delivered instruments submitted to it.it in connection with its duties hereunder;
(hc) The Escrow Agent shall not be called upon entitled to advise deem the signatories of any party documents or instruments submitted to it hereunder as being those purported to the wisdom in selling be authorized to sign such documents or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering instruments on behalf of the Escrow Funds Parties, and shall be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and without requiring substantiating evidence of any successor Escrow Agent jointly designated by kind. Concurrent with the other parties hereto in writingexecution of this Agreement, or Parent and the Representative shall deliver to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of Exhibit A-1 and from any and all further obligations arising Exhibit A-2 to this Agreement which contain the authorized signers’ designations in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.Part A thereof;
(jd) The Escrow Agent shall have no responsibility for the contents of be entitled to refrain from taking any writing of the arbitrators or any third party action contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In by this Agreement in the event that it becomes aware of any disagreement between the other parties hereto resulting as to any facts or as to the happening of any contemplated event precedent to such action, except as expressly provided herein;
(e) have no responsibility or liability for any diminution in adverse claims value of any assets held hereunder which may result from any investments or demands being reinvestment made in connection accordance with this Agreement;
(f) be entitled to compensation for its services hereunder as per Exhibit B attached hereto, which is made a part hereof, and for reimbursement of its reasonable out-of-pocket expenses, including, but not by way of limitation, the reasonable fees and costs of attorneys or agents which it may find necessary to engage in performance of its duties hereunder, all to be paid 50% by Parent and 50% by the Representative (on behalf of the Security Holders) first from the Escrow FundsFund; provided, or in the event however, that if Parent fails to pay Parent’s amount to the Escrow Agent in good faith is in doubt as to what action it should take hereunderwithin thirty (30) days following the Escrow Agent’s delivery of an invoice for such amount, the Escrow Agent shall be entitled to retain be paid such amount by deduction from the Escrow Funds Fund, and Parent shall be obligated to replenish the Escrow Fund;
(g) be under no obligation to invest deposited funds or the income generated thereby until it has received a Form W-8 or W-9, as applicable, from Parent, regardless of whether such party is exempt from the reporting or withholding requirements under the Internal Revenue Code of 1986, as amended (the “Code”), and Parent hereby covenants and agrees that it shall deliver a Form W-8 or W-9, as applicable, on or prior to the date of this Agreement;
(h) be, and hereby is, indemnified and saved harmless by Parent and by the Representative (on behalf of the Securities Holders), severally and not jointly on a 50/50 basis from all losses, liabilities, costs and expenses, including reasonable attorney fees and expenses, which may be incurred by it as a result of its acceptance of the Escrow Account or arising from the performance of its duties hereunder, unless such losses, liabilities, costs and expenses shall have been finally adjudicated to have been primarily caused by the gross negligence or willful misconduct of the Escrow Agent, and such indemnification shall survive its resignation or removal, or the termination of this Agreement; provided, that, any amounts that Representative may be obligated to pay to the Escrow Agent under this Section 4(h) on behalf of the Securities Holders shall be first paid from the Escrow Funds; provided further, that, if Parent fails to pay Parent’s amount of the foregoing to the Escrow Agent within thirty (30) days following the Escrow Agent’s delivery of an invoice for such amount, the Escrow Agent shall have received be entitled to be paid such amount by deduction from the Escrow Fund, and Parent shall be obligated to replenish the Escrow Fund;
(i) have only those duties as are specifically provided herein, which shall be deemed purely ministerial in nature, and shall under no circumstance be deemed a final nonappealable order of a court of competent jurisdiction directing delivery fiduciary for any of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealablethis Agreement. The Escrow Agent shall act on such court order neither be responsible for, nor chargeable with, knowledge of the terms and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event conditions of any dispute other agreement, instrument or document between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of connection herewith, including without limitation the Merger Agreement. This Agreement sets forth all liability under the terms hereof as matters pertinent to the property so depositedescrow contemplated hereunder, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties no additional obligations of the Escrow Agent shall be issued inferred from the terms of this Agreement or any other agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (i) DAMAGES, LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (ii) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION;
(j) have the right, but not the obligation, to consult with counsel of choice and shall not be liable for action taken or omitted to be taken by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first in accordance with the advice of such counsel; and
(k) have given the right to perform any of its specific written consent to such mention(s)duties hereunder through its agents, which consent shall not be unreasonably withheld attorneys, custodians or delayednominees.
Appears in 1 contract
Sources: Merger Agreement (Biomet Inc)
Concerning the Escrow Agent. (ai) The Escrow Agent shall not be under Notwithstanding any duty provision contained herein to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liablecontrary, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, including ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP’s officers, directors, employees and agents, will:
(i) not be liable for any action taken or omitted under this Escrow Agreement so long as he has acted in good faith and without gross negligence or willful misconduct;
(ii) have no responsibility to inquire into or determine the genuineness, authenticity, or sufficiency of any securities, checks, or other documents or instruments submitted to it in connection with its duties hereunder;
(iii) be entitled to deem the signatories of any documents or instruments submitted to it hereunder as being those purported to be authorized to sign such documents or instruments on behalf of the parties hereto shall jointly hereto, and severally indemnify will be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and hold without requiring substantiating evidence of any kind;
(iv) [Reserved];
(v) be indemnified and saved harmless by the Escrow Agent (and any successor Escrow Agent) Parties from and against any and all losses, liabilities, claims, actionsproceedings, damages suits, demands, penalties, costs and expenses, including without limitation reasonable attorney's fees and disbursementsexpenses of outside counsel and experts and their staffs and all reasonable expenses of document location, arising out duplication and shipment and of and in connection with this Escrow Agreement. Without limiting preparation to defend any of the foregoingforegoing (“Losses”), the Escrow Agent shall in no event which may be liable in connection with its investment or reinvestment of any Escrow Funds held incurred by it hereunder in good faithas a result of its execution, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct delivery or breach performance of this Escrow Agreement) in , unless such Losses are caused by the investment bad faith, gross negligence or reinvestment willful misconduct of the Escrow FundsAgent, and the provisions of this Section 4(a)(v) will survive the resignation or any loss removal of interest incident to any such delays.the Escrow Agent and the termination of this Escrow Agreement;
(dvi) The Escrow Agent shall have only those duties as are specifically provided herein, which will be entitled to rely upon deemed purely ministerial in nature, and will under no circumstance be deemed a fiduciary for any order, judgment, certification, demand, notice, instrument or of the other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereofParties. The Escrow Agent may act in reliance upon will neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advicedocument between the other parties hereto, accept receipt of or execute any document, or make any statement in connection with herewith, including without limitation the provisions hereof, has been duly authorized to do so.
(e) The Agreements. This Escrow Agent may act pursuant Agreement sets forth all matters pertinent to the advice Escrowed Document contemplated hereunder, and no additional obligations of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination will be inferred from the terms of this Escrow Agreement or the resignation of the Escrow Agent.any other Agreement. IN NO EVENT WILL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION;
(gvii) The Escrow Agent makes no representation as have the right, but not the obligation, to the validity, value, genuineness or the collectibility consult with and retain counsel of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action its choice with respect to any securities or other property deposited hereunder.
matters (iincluding but not limited to litigation) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court arising out of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent Agreement and will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) not be liable for action taken or (ii) the day which is 30 days after the date of delivery of its written notice of resignation omitted to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction taken by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with the advice of such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnificationcounsel; and
(iiviii) That it may in its sole and absolute discretion, deposit have the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as right to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of perform any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable feesthrough agents, expenses and disbursements of its counsel)attorneys, custodians or nominees.
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty undertakes to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property perform only such duties as are expressly set forth herein and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of agrees to release any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds property held by it hereunder in good faith, (the “Escrowed Property”) in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of and conditions set forth in this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(db) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any writing or instrument or signature reasonably believed by it which it, in good faith, believes to be genuine genuine, may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and may assume that any person purporting to give notice any writing, notice, advice or advice, accept receipt of or execute any document, or make any statement instructions in connection with the provisions hereof, hereof has been duly authorized to do so. The Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner, and execution, or validity of any instrument deposited in this escrow, nor as to the identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the safekeeping of the Escrowed Property, and for the disposition of the same in accordance with this Agreement. Escrow Agent shall not be deemed to have knowledge of any matter or thing unless and until Escrow Agent has actually received written notice of such matter or thing and Escrow Agent shall not be charged with any constructive notice whatsoever.
(c) Escrow Agent shall hold in escrow, pursuant to this Agreement, the Escrowed Property actually delivered and received by Escrow Agent hereunder, but Escrow Agent shall not be obligated to ascertain the existence of (or initiate recovery of) any other property that may be part or portion of the Collateral, or to become or remain informed with respect to the possibility or probability of additional Collateral being realized upon or collected at any time in the future, or to inform any parties to this Agreement or any third party with respect to the nature and extent of any Collateral realized and received by Escrow Agent (except upon the written request of such party), or to monitor current market values of the Collateral. Further, Escrow Agent shall not be obligated to proceed with any action or inaction based on information with respect to market values of the Collateral which Escrow Agent may in any manner learn, nor shall Escrow Agent be obligated to inform the parties hereto or any third party with respect to market values of any of the Collateral at any time, Escrow Agent having no duties with respect to investment management or information, all parties hereto understanding and intending that Escrow Agent’s responsibilities are purely ministerial in nature. Any reduction in the market value or other value of the Collateral while deposited with Escrow Agent shall be at the sole risk of Pledgor and Secured Party. If all or any portion of the Escrowed Property is in the form of a check or in any other form other than cash, Escrow Agent shall deposit same as required but shall not be liable for the nonpayment thereof, nor responsible to enforce collection thereof.
(d) In the event instructions from Secured Party, Pledgor, or any other Person would require Escrow Agent to expend any monies or to incur any cost, Escrow Agent shall be entitled to refrain from taking any action until it receives payment for such costs. It is agreed that the duties of Escrow Agent are purely ministerial in nature and shall be expressly limited to the safekeeping of the Escrowed Property and for the disposition of same in accordance with this Agreement. Secured Party and the Pledgor, jointly and severally, each hereby indemnifies Escrow Agent and holds it harmless from and against any and all claims, liabilities, damages, costs, penalties, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees or charges of any character or nature (collectively, the “Claims”), which it may incur or with which it may be threatened, directly or indirectly, arising from or in any way connected with this Agreement or which may result from Escrow Agent’s following of instructions from Secured Party and the Pledgor, and in connection therewith, indemnifies Escrow Agent against any and all expenses, including attorneys’ fees and the cost of defending any action, suit, or proceeding or resisting any Claim, whether or not litigation is instituted, unless any such Claims arise as a result of Escrow Agent’s gross negligence or willful misconduct. Escrow Agent shall be vested with a lien on all Escrowed Property under the terms of this Agreement, for indemnification, attorneys’ fees, court costs and all other costs and expenses arising from any suit, interpleader or otherwise, or other expenses, fees or charges of any character or nature, which may be incurred by Escrow Agent by reason of disputes arising between Pledgor and the Secured Party, or any third party as to the correct interpretation of this Agreement, and instructions given to Escrow Agent hereunder, or otherwise, with the right of Escrow Agent, regardless of the instruments aforesaid and without the necessity of instituting any action, suit or proceeding, to hold any property hereunder until and unless said additional expenses, fees and charges shall be fully paid. Any fees and costs charged by the Escrow Agent for serving hereunder shall be paid by the Pledgor.
(e) In the event Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from Secured Party and Pledgor or from third persons with respect to the Escrowed Property, which, in Escrow Agent’s sole opinion, are in conflict with each other or with any provision of this Agreement, Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise in writing by Pledgor and Secured Party and said third persons, if any, or by a final order or judgment of a court of competent jurisdiction. If any of the parties shall be in disagreement about the interpretation of this Agreement, or about the rights and obligations, or the propriety of any action contemplated by the Escrow Agent hereunder, the Escrow Agent may, at its sole discretion, deposit the Escrowed Property with a court having jurisdiction over this Agreement, and, upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully cease and terminate. The Escrow Agent may act pursuant shall be indemnified by the Pledgor and Secured Party for all costs, including reasonable attorneys’ fees, in connection with the aforesaid proceeding, and shall be fully protected in suspending all or a part of its activities under this Agreement until a final decision or other settlement in the proceeding is received. In the event Escrow Agent is joined as a party to a lawsuit by virtue of the fact that it is holding the Escrowed Property, Escrow Agent shall, at its sole option, either: (i) tender the Collateral in its possession to the advice registry of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken the appropriate court; or omitted (ii) disburse the Collateral in its possession in accordance with such advicethe court’s ultimate disposition of the case, except for and Secured Party and Pledgor hereby, jointly and severally, indemnify and hold Escrow Agent harmless from and against any action constituting gross negligencedamages or losses in connection therewith including, willful misconduct or a breach of this Escrow Agreementbut not limited to, reasonable attorneys’ fees and court costs at all trial and appellate levels.
(f) The Escrow Agent is serving as escrow holder only may consult with counsel of its own choice (and has no interest in the Escrow Funds deposited hereunder. Any payments costs of income from this Escrow Agreement such counsel shall be subject to withholding regulations then paid by the Pledgor and Secured Party, jointly and severally) and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in force good faith and in accordance with respect to United States taxesthe opinion of such counsel. The Company will provide the Escrow Agent with appropriate W-9 forms shall not be liable for tax identification number certification any mistakes of fact or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding error of judgment, or for any termination actions or omissions of this Escrow Agreement any kind, unless caused by its willful misconduct or the resignation of the Escrow Agentgross negligence.
(g) The Escrow Agent makes no representation as may resign upon ten (10) days’ written notice to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom parties in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any this Agreement. If a successor Escrow Agent jointly designated is not appointed by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of Secured Party and from any and all further obligations arising in connection with Pledgor within this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of ten (i10) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderperiod, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of may petition a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) to name a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further questionsuccessor.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Pledge and Escrow Agreement (Inventergy Global, Inc.)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) 3.01 The Escrow Agent shall be entitled to rely reasonable compensation for its service hereunder and shall be reimbursed for all reasonable expenses, disbursements and advances (including reasonable attorneys' fees and expenses) incurred or made by it in performance of its duties hereunder. The Buyer, on the one hand, and the Seller and the Shareholders, on the other hand, shall each promptly pay one-half (1/2) of the amounts described in the preceding sentence upon receipt of a reasonably detailed itemized statement from the Escrow Agent.
3.02 The Escrow Agent may resign and be discharged from its further duties hereunder at any ordertime by giving written notice of such resignation to the Buyer, judgmentthe Seller and the Shareholders specifying a date (not less than thirty days after the giving of such notice) when such resignation shall take effect. Promptly after the receipt of such notice, certificationa successor escrow agent, demandwhich shall be a bank or trust company having capital and surplus of at least $50,000,000, shall be appointed by mutual agreement of the Buyer, the Seller and the Shareholders. If the Buyer, the Seller and the Shareholders are unable to agree upon a successor escrow agent within thirty days after such notice, the Escrow Agent shall be entitled to appoint its successor. The Escrow Agent shall continue to serve until its successor accepts the escrow and receives the Collateral. The Buyer, on the one hand, and the Seller and the Shareholders, on the other hand, may agree at any time to substitute a new escrow agent by giving written notice thereof to the Escrow Agent then acting.
3.03 The Escrow Agent undertakes to perform such duties as are specifically set forth herein. The Escrow Agent acting or refraining from acting in good faith shall not be liable for any mistake of fact or error in judgment by it or for any acts or omissions by it of any kind, unless caused by willful misconduct or gross negligence, and shall be entitled to rely, and shall be protected in doing so, upon (i) any written notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice have been presented by the proper party or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been parties duly authorized to do so.
, and (eii) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not (which may be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation that of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement's choosing). The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means submitted to resolve disputes it hereunder and may shall be entitled in good faith to rely without any liability upon the contents thereof.
(k) In 3.04 The Buyer, on the event of any disagreement between one hand, and the Seller and the Shareholders, on the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fundshand, or in the event that agree to indemnify the Escrow Agent in good faith is in doubt and hold it harmless against any and all liabilities incurred by it hereunder as a consequence of their respective action, and each further agrees jointly to what action it should take hereunder, indemnify the Escrow Agent shall be entitled to retain and hold it harmless against any and all liabilities incurred by it hereunder which are not the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order consequence of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fundstheir respective action, except, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel either case for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered liabilities incurred by the Escrow Agent hereunderresulting from its own willful misconduct or gross negligence. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance The indemnity provisions set forth herein shall survive any termination of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)this Agreement.
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under Notwithstanding any duty provision contained herein to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liablecontrary, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly including its officers, directors, employees and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all lossesagents, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.shall:
(da) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be held liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from under this Escrow Agreement so long as it shall be subject to withholding regulations then have acted in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) good faith and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.without gross negligence;
(gb) The Escrow Agent makes have no representation as responsibility to inquire into or determine the validitygenuineness, valueauthenticity, genuineness or the collectibility sufficiency of any security securities, check, or other documents or instrument held by or delivered instruments submitted to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising it in connection with its duties hereunder;
(c) be entitled to deem the signatories of any documents or instruments submitted to it hereunder as being those purported to be authorized to sign such documents or instruments on behalf of the parties hereto and shall be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and without requiring substantiating evidence of any kind;
(d) be entitled to refrain from taking any action contemplated by this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or Agreement in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event becomes aware of any dispute disagreement between the parties hereto as to any facts or as to the facts happening of defaultany contemplated event precedent to such action;
(e) have no responsibility or liability for any diminution in value of any assets held hereunder which may result from any investment or reinvestment made in accordance with any provision which may be contained herein;
(f) be entitled to compensation for its services hereunder as per Exhibit C attached hereto and for reimbursement of its out-of-pocket expenses including, but not by way of limitation, the validity reasonable fees and costs of attorneys or meaning agents which it may find necessary to engage in performance of these instructions its duties hereunder, to be paid in full by Purchaser, except that any sales loads, fees or transaction charges assessed by The Vanguard Group ("Vanguard Charges") shall be paid out of the Escrow Fund;
(g) be entitled to set off and apply the Escrow Fund against any other fact or matter relating fees and expenses to the transaction between the parties, which the Escrow Agent is instructed as follows:entitled hereunder and which are due and owing, but only after the Escrow Agent has given notice requesting payment thereof to Sellers' Representative and Purchaser and such fees and expenses remain unpaid for 60 days following the date of receipt by Sellers' Representative and Purchaser of such notice. The Escrow Agent shall promptly notify Sellers' Representative and Purchaser after any such setoff and application made by the Escrow Agent, and Purchaser shall promptly reimburse the Escrow Fund for the amount of such setoff, except that Sellers shall promptly reimburse the Escrow Fund for the amount of such setoff where such setoff is incurred due to Vanguard Charges;
(ih) That it shall be under no obligation to act, except as and to invest the extent directed under process deposited funds or order of court, or the income generated thereby until it has been adequately indemnified to its full satisfactionreceived a U.S. Internal Revenue Service Form W-9 (or W-8, if applicable) from Seller;
(i) be, and hereby is, jointly and severally indemnified and saved harmless by the other parties hereto from all loss, costs, and expenses, including attorney's fees, which may be incurred by it as a result of its involvement in any litigation arising from the performance of its duties hereunder, provided that such litigation shall sustain no liability not have resulted from any action taken or omitted by it and for its failure which it shall have been adjudged to act pending have acted in bad faith or to have been grossly negligent; such process indemnification shall survive termination of this Escrow Agreement and the resignation or court order or indemnification; andremoval of the Escrow Agent pursuant to Section 10 hereof until extinguished by any applicable statute of limitation. As between Seller and Purchaser, each shall be responsible for one-half of such indemnification obligations;
(iij) That it may in its sole and absolute discretion, deposit the property herein event any dispute shall arise between the parties with respect to the disposition or so much thereof as remains in its hands with the then Clerk, or acting Clerk, disbursement of any of the District Court assets held hereunder, be permitted to interplead all of the City and County assets held hereunder into a court of Denver, State of Colorado, interplead the parties heretocompetent jurisdiction, and upon so depositing such property thereafter be fully relieved from any and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as or obligation with respect to the property so deposited, and furthermore, the such interpleaded assets. The other parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves further agree to the jurisdiction of said court and do hereby appoint the then Clerk, pursue any redress or acting Clerk, of said court as their Agent for the service of all process recourse in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of a dispute, without making the Escrow Agent under Section 4(c) above.a party to same unless required by applicable law;
(mk) The Company agrees to pay the Escrow Agent only have those duties as compensation for the services of the Escrow Agent hereunderare specifically provided herein, a fee of $1,500 as payment which shall be deemed purely ministerial in full for the services to nature;
(l) neither be rendered by the Escrow Agent hereunder. In additionresponsible for, nor chargeable with knowledge of, the Company agrees to pay all reasonable expensesterms and conditions of any other agreement, disbursements and advances incurred instrument, or made by document between the Escrow Agent other parties hereto, in performance of its duties hereunder (including reasonable fees50 connection herewith, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports the Asset Purchase Agreement and promotional materials) which mentions shall be required to act only pursuant to the terms and provisions of this Escrow Agent's name or Agreement. This Escrow Agreement sets forth all matters pertinent to the rights, powers or duties escrow contemplated hereunder and no additional obligations of the Escrow Agent shall be issued implied from the terms of this Escrow Agreement or any other agreement;
(m) use Seller's federal employer identification number (37-1▇▇▇▇▇▇) ▇▇ the taxpayer identification number for all investments of the Escrow Fund and, to the extent applicable, for Form 1099 or Schedule K-1 reporting purposes, until such times as the Seller shall notify the Escrow Agent of a different taxpayer identification number;
(n) have the right, but not the obligation, to consult with counsel of choice and shall not be liable for action taken or omitted to be taken by Escrow Agent either in accordance with the other parties hereto advice of such counsel or on such parties' behalf unless in accordance with any opinion of counsel to the Purchaser and Seller addressed and delivered to the Escrow Agent; and
(o) have the right to perform any of its duties hereunder through agents, attorneys, custodians or nominees. Any banking association or corporation into which the Escrow Agent may be merged, converted or with which the Escrow Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent shall first have given its specific written consent be a party, or any banking association or corporation to such mention(s)which all or substantially all of the corporate trust business of the Escrow Agent shall be transferred, which consent shall not be unreasonably withheld succeed to all the Escrow Agent's rights, obligations and immunities hereunder without the execution or delayedfiling of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. The immunities and protection and right to indemnification listed in this Section 8, together with the Escrow Agent's right to compensation, shall survive the termination of this Agreement and the Escrow Agent's resignation or removal.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty Company agrees to give pay the Escrow Funds held Agent's fees and expenses for all services rendered by it hereunder any greater degree of care than as set forth in Exhibit B and the Escrow Agent's reasonable attorneys' fees incurred by it gives in connection with carrying out its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreementduties hereunder.
(b) This The Company agrees to indemnify the Escrow Agent for, and to hold it harmless against, any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Escrow Agent, including the costs and expenses of defending itself against any claim of liability. Anything in this Agreement expressly sets forth all to the duties contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into the termination of this Escrow Agreement against the Escrow AgentAgreement. The Escrow Agent shall not have, and hereby waives, any lien, security interest, right of set-off, or other encumbrance with respect to the Escrow Fund or any money, instruments, investment property, or other property on deposit in, credited to, or carried in the Escrow Fund, to secure its rights to be bound by paid any amounts owing under paragraphs (a) or (b) of this Section 7, and the provisions Escrow Agent agrees that it shall look solely to the Company, and not to the Escrow Fund, for the payment of any other agreement among the parties hereto except this Escrow Agreementsuch amounts.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach prepare and deliver to the Company within ten (10) Business Days after the termination of this Escrow Agreement, and, except Agreement a written account describing all transactions with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delaysFund.
(d) The duties and responsibilities of the Escrow Agent hereunder shall be entitled to rely upon any orderdetermined solely by the express provisions of this Agreement, judgment, certification, demand, notice, instrument and no other or other writing delivered to it hereunder without being required to determine the authenticity further duties or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to responsibilities shall be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do soimplied.
(e) The Escrow Agent may act pursuant upon any instrument or other writing provided by a duly authorized officer of the Company believed by it in good faith to be genuine, and to be signed or presented by the advice of counsel with respect to any matter relating to this Escrow Agreement proper person, and shall not be liable for any action taken or omitted in accordance connection with such advicethe performance by it of its duties pursuant to the provisions of this Agreement, except for any action constituting its own willful misconduct, bad faith or gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon under no duty to advise inquire into or investigate the validity, accuracy or content of any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities such instrument or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of duty to solicit any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and payments which may rely without any liability upon the contents thereofbe due hereunder.
(kf) In the event of any disagreement between the Any corporation or other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that entity into which the Escrow Agent in good faith is in doubt as its individual capacity may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to what action it should take hereunder, which the Escrow Agent in its individual capacity shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fundsparty, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any corporation or other fact or matter relating entity to which substantially all the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights corporate trust business of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay in its individual capacity may be transferred, shall be the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)under this Agreement without further act.
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Escrow Deposit and Disbursement Agreement (Pg&e Corp)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Company and the Buyers acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Company or the Buyers are entitled to receipt of the Transaction Documents or Escrowed Funds pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the Escrow Funds property held by it Escrow Agent hereunder any greater degree of care than it the Escrow Agent gives its own similar property property, but in no event less than a reasonable amount of care; and shall not (vi) may consult with counsel satisfactory to the Escrow Agent, the opinion of such counsel to be required to invest full and complete authorization and protection in respect of any funds held action taken, suffered or omitted by the Escrow Agent hereunder except as directed pursuant to Section 1 in good faith and in accordance with the opinion of this Escrow Agreementsuch counsel.
(b) The Company and the buyers acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by the Escrow Agent to be authorized or within the rights or powers conferred upon the Escrow Agent by this Agreement. The Company agrees to indemnify and hold harmless the Escrow Agent and any of the Escrow Agent's partners, employees, agents, and representatives for any action taken or omitted to be taken by the Escrow Agent or any of them hereunder, including the fees of outside counsel and other costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on the part of the Escrow Agent committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Company and the Buyers under this Agreement and to no other person.
(c) The Company agrees to reimburse the Escrow Agent for outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Company. Prior to the effective date of the resignation as specified in such notice, the Company will issue to the Escrow Agent an Instruction authorizing delivery of the Transaction Documents and the Escrowed Funds to a substitute escrow agent selected by the Company. If no successor escrow agent is named by the Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor escrow agent, and to deposit the Transaction Documents and Escrowed Funds with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Transaction Documents or the Escrowed Funds, but is serving only as escrow agent in connection therewith, having only possession thereof.
(f) This Escrow Agreement expressly sets forth all exclusively the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No thereto and no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to provisions of this Section 4.1 shall survive the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties termination of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedthis Agreement.
Appears in 1 contract
Concerning the Escrow Agent. Each party agrees that:
(a) The Escrow Agent shall not be under any duty to give the Escrow Funds Property held by it hereunder any greater degree of care than it gives its own similar property property, and shall not be required to invest any funds held hereunder. Uninvested funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreementshall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties The duties, responsibilities and obligations of the Escrow Agent with respect shall be limited to any those expressly set forth herein and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Escrow Agreement against the Escrow Agentinferred or implied. The Escrow Agent shall not be bound by the provisions of subject to, nor required to comply with, any other agreement between or among any or all of the parties hereto except Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or to which any of them may be a party and to which the Escrow Agent is not a party, nor required to comply with any direction or instruction that is not delivered to the Escrow Agent in accordance with this Agreement. The Escrow AgreementAgent shall not be required to expend or risk any of its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder. The Escrow Agent shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification. Notwithstanding any other provision hereof, the Escrow Agent shall have no responsibility whatsoever for any Shares, and the Escrow Agent shall have no duty to disburse any funds deposited with it by check until such check shall have cleared.
(c) The Escrow Agent shall not be liable, except liable for any action taken or omitted or for any loss or injury resulting from its own actions or its performance or lack of performance of its duties hereunder in the absence of gross negligence, negligence or willful misconduct on its part. In no event shall Escrow Agent be liable (i) for acting in accordance with or breach relying upon any order, judgment, instruction, notice, demand, certificate, instrument, consent, authorization, receipt, power of this Escrow Agreementattorney, ande-mail, except with respect .pdf or writing from the Company or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or any entity acting on its behalf that is delivered to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereofthis Agreement, including, without limitation, any liability or (ii) for any delays (not resulting from its gross negligenceindirect, willful misconduct consequential, punitive or breach of this Escrow Agreement) in the investment or reinvestment special damages, regardless of the Escrow Funds, form of action and whether or any loss of interest incident to not any such delaysdamages were foreseeable or contemplated.
(d) The Escrow Agent shall be entitled not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of Escrow Agent (including but not limited to rely upon any act or provision of any present or future law or regulation or governmental authority, any act of God, terrorism, war, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, certificationdecree, demand, notice, instrument writ or other writing delivered form of judicial or administrative process which in any way affects the Escrow Property (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Escrow Property), the Escrow Agent is authorized to comply therewith in any manner it hereunder or legal counsel of its own choosing deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, the Escrow Agent shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without being required legal force or effect. The Escrow Agent shall have no duty to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(ef) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(fg) The Escrow Agent does not have any interest in the Escrow Property deposited hereunder but is serving as escrow holder only and has no interest having only possession thereof. The Company shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrow Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the Escrow Funds deposited hereunderway of such taxes. Any payments of income from this Escrow Agreement Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ will provide the Escrow Agent with appropriate W-9 forms for tax identification I.D., number certification certifications, or nonresident W-8 forms for non-resident alien certifications. This Section 4(f.
(h) Paragraphs (c) and Section 4(c(g) shall survive notwithstanding any termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(gi) The Escrow Agent makes no representation as to shall not be responsible in any respect for the form, execution, validity, valuesufficiency, value or genuineness of documents or securities deposited hereunder, or for any description therein, or for the collectibility identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such document, security or other documents or instrument held by or delivered to it.
(h) endorsement. The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kj) In the event of any disagreement dispute between or conflicting claims by or among the other parties hereto resulting in adverse claims or demands being made in connection Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ with the respect to any Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderProperty, the Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such Escrow Property so long as such dispute or conflict shall continue, and the Escrow Agent shall not be or become liable in any way to the Company or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to retain refuse to act until, in its sole discretion, either (i) such conflicting or adverse claims or demands shall have been determined by a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing signed by an Authorized Person of each of the parties and satisfactory to the Escrow Funds until Agent, or (ii) the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds security or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party an indemnity satisfactory to the Escrow Agent it sufficient to the effect hold it harmless from and against any and all losses that said court order is final and nonappealableit may incur by reason of so acting. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained hereinmay, in the event of any dispute between the parties hereto as to the facts of defaultaddition, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the partieselect, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein to commence an interpleader action or so much thereof seek other judicial relief or orders as remains it may deem, in its hands with the then Clerksole discretion, or acting Clerk, of the District Court of the City necessary. The costs and County of Denver, State of Colorado, interplead the parties hereto, expenses (including reasonable attorneys’ fees and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process expenses) incurred in connection with such proceedings. The institution of any such interpleader action proceeding shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunderbe paid by, a fee of $1,500 as payment in full for the services to and shall be rendered by the Escrow Agent hereunder. In additiondeemed an obligation of, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)Company.
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Subscription Escrow Agreement (Transatlantic Petroleum Ltd.)
Concerning the Escrow Agent. (a) Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation the Purchase Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility or duty to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrow Funds held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all in the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent’s gross negligence or intentional misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any other agreement among such loss or damage and regardless of the parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, except for its own gross negligencesecurities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, willful misconduct securities intermediary or breach of this Escrow Agreement, and, except with respect other subescrow agent has to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, except to the extent that such action or omission of any book-entry depository, securities intermediary or other parties hereto shall jointly and severally indemnify and hold harmless subescrow agent was caused by the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and ’s own gross negligence or intentional misconduct in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderis hereby authorized, judgment, certification, demand, notice, instrument in making or other writing delivered to it hereunder without being required to determine the authenticity or the correctness disposing of any fact stated therein investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as a subagent of the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon or for any instrument third person or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do sodealing as principal for its own account.
(e) The Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrow Property (or take other action that may act pursuant be called for hereunder to be taken by the advice Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Agreement in good form, or (ii) passage of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken the applicable time period (or omitted in accordance with such adviceboth, except for any action constituting gross negligence, willful misconduct or a breach as applicable under the terms of this Escrow Agreement), as the case may be.
(f) The Escrow Agent is serving as escrow holder only Unless and has no interest in except to the Escrow Funds deposited extent otherwise expressly set forth herein, all deposits and payments hereunder. Any , or pursuant to the terms hereof (including without limitation all payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This pursuant to Section 4(f) and Section 4(c6 hereof) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agentbe in U.S. dollars.
(g) The Escrow Agent makes no representation agrees that the Interested Parties may, by mutual written agreement at any time upon thirty (30) days written notice, remove the Escrow Agent as to the validityescrow agent hereunder, valueand substitute another escrow agent therefor, genuineness or the collectibility in which event, upon receipt of written notice thereof and payment of any security accrued but unpaid fees or other documents or instrument expenses due the Escrow Agent, the Escrow Agent shall deliver to such substituted escrow agent the Escrow Property held by or delivered to it, and the Escrow Agent shall thereafter be discharged from all liability hereunder.
(h) The Escrow Agent provisions of Section 5 of this Agreement shall not be called upon to advise any party as to survive the wisdom in selling resignation or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation removal of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties termination of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedthis Agreement.
Appears in 1 contract
Sources: Cash Escrow Agreement (Haights Cross Communications Inc)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) 5.01 The Escrow Agent shall be entitled to rely reasonable compensation for its services hereunder and shall be reimbursed for all reasonable expenses, disbursements and advances (including reasonable attorneys' fees and expenses) incurred or made by it in performance of its duties hereunder. Such reasonable compensation, disbursement, expenses and advances shall be borne equally by Allegro and the Stockholders' Representative and shall be paid promptly upon request by the Escrow Agent.
5.02 The Escrow Agent may resign and be discharged from its duties hereunder at any ordertime by giving notice of such resignation to Allegro and Stockholders' Representative specifying a date (not less than 30 days after the giving of such notice) when such resignation shall take effect. Promptly after such notice, judgmentAllegro and the Stockholders' Representative shall appoint a mutually agreeable successor Escrow Agent, certificationsuch successor Escrow Agent to become Escrow Agent hereunder upon the resignation date specified in such notice. If Allegro and the Stockholders' Representative are unable to agree upon a successor Escrow Agent with 30 days after such notice, demandthe Escrow Agent shall have the right to petition a court of competent jurisdiction to appoint a successor, and the Escrow Agent shall continue to serve until its successor accepts the escrow and receives the Escrowed Property.
5.03 The Escrow Agent undertakes to perform only such duties as are specifically set forth herein. The Escrow Agent acting or refraining from acting in good faith shall not be liable for any mistake of fact or error of judgment by it or for any acts or omissions by it of any kind unless caused by gross negligence or willful misconduct, and shall be entitled to rely, and shall be protected in doing so, upon (a) any written notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice have been signed or advice, accept receipt of presented by the proper party or execute any document, or make any statement in connection with the provisions hereof, has been parties duly authorized to do so.
, and (eb) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not (which may be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation 's own choosing, so long as such counsel is not counsel to the validity, value, genuineness Allegro or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow AgreementStockholders' Representative). The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means submitted to resolve disputes it hereunder and may shall be entitled in good faith to rely without any liability upon the contents thereof. The Escrow Agent has no responsibilities under, and shall be deemed to have no knowledge of, the provisions of the Reorganization Agreement.
(k) 5.04 Allegro and the Stockholders agree to indemnify the Escrow Agent and hold it harmless against any and all liabilities incurred by it hereunder as a consequence of such indemnifying party's action and the Allegro and the Stockholders further agree to indemnify the Escrow Agent and hold it harmless against any and all losses, costs, fees and expenses incurred by the Escrow Agent which are not a consequence of its actions or failure to act, except, in either case for liabilities incurred by the Escrow Agent resulting from its own gross negligence or willful misconduct. One-half of the amount of any such payment or indemnification shall be paid to the Escrow Agent by Allegro and the other half of the amount of any such payment or indemnification shall be paid by the Stockholders. The indemnification provided pursuant to this section shall survive the resignation of the Escrow Agent or the termination of this Escrow Agreement.
5.05 In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent becomes involved in good faith any litigation or dispute by reason hereof, it is in doubt as hereby authorized to what action it should take hereunder, deposit with the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order clerk of a court of competent jurisdiction directing delivery the Escrowed Property held by it pursuant hereto and, thereupon, shall stand fully relieved and discharged of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fundsany further duties hereunder. Also, in which the event the Escrow Agent shall disburse is threatened with litigation by reason hereof, it is hereby authorized to interplead all interested parties in any court of competent jurisdiction and to deposit with the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion clerk of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order the Escrowed Property held by it pursuant hereto and, thereupon, shall stand fully relieved and legal opinions without discharged of any further questionduties hereunder.
(l) Notwithstanding anything to the contrary contained herein, in 5.06 In the event of any claim, dispute between or litigation concerning the parties hereto as Reorganization Agreement or this Escrow Agreement, Blau, Kramer, Wactlar & ▇▇▇▇▇▇▇▇▇, P.C. shall nevertheless have the unqualified right to the facts of defaultrepresent Allegro, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as its officers and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may directors in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution respect of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent claim, dispute or litigation, notwithstanding that it is acting as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Escrow Agreement (Cinnamon Barry A)
Concerning the Escrow Agent. Notwithstanding any provision contained herein to the contrary, the Escrow Agent including its officers, directors, employees and agents, shall:
(a) The Escrow Agent shall not be, and hereby is, jointly and severally indemnified and saved harmless by the Principals from all claims, liabilities, judgments, fines, settlements, expenses, demands, costs, penalties, losses, actions, suits or proceedings at law or equity, or any other expenses, fees or charges of any character or nature, including attorney fees and expenses (collectively, “Losses”), which may be under any duty to give the Escrow Funds held incurred by it hereunder any greater degree it, directly or indirectly, as a result of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties acceptance of the Escrow Agent with respect Account or arising from or in any way connected to any and all matters pertinent hereto. No implied the performance of its duties or obligations hereunder, unless such Losses shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound have been finally adjudicated to have been caused by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liablebad faith, except for its own gross negligence, willful misconduct or breach fraud of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losseseach as determined by a final, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any nonappealable order, judgment, certification, demand, notice, instrument decree or other writing delivered to it hereunder without being required to determine the authenticity or the correctness ruling of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction), whereupon and such indemnification shall survive its resignation or removal, or the termination of this Agreement;
(b) in the event that (i) any dispute shall arise between the parties with respect to the disposition or disbursement of any of the assets held hereunder or (ii) the Escrow Agent shall be discharged uncertain as to how to proceed in a situation not explicitly addressed by the terms of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation Agreement whether because of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction conflicting demands by the other parties hereto or a final order otherwise, (A) after seeking the advice of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fundslegal counsel, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain refrain from taking any action in that instance and its sole obligation, in addition to those of its duties hereunder as to which there is no such uncertainty and which are not impacted by such uncertainty, shall be to keep safely all property, if any, held in the Escrow Funds Account until the Escrow Agent it shall have received (i) be directed by a final Joint Instruction or by a final, nonappealable order of a court of competent jurisdiction directing delivery or (B) be permitted to interplead all of the Escrow Funds assets held hereunder into a court of competent jurisdiction, and thereafter be fully relieved from any and all liability or (ii) a written agreement executed by the other obligation with respect to such interpleaded assets. The parties hereto directing delivery of the Escrow Funds, in which event other than the Escrow Agent shall disburse the Escrow Funds further agree to pursue any redress or recourse in accordance connection with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to dispute, without making the Escrow Agent a party to same;
(c) have only those duties, responsibilities or obligations as are specifically provided herein, which shall be deemed purely ministerial in nature, and shall under no circumstance be deemed a fiduciary for any of the effect that said court order is final and nonappealableparties to this Agreement. The Escrow Agent shall act on such court order neither be responsible for, nor chargeable with, knowledge of the terms and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event conditions of any dispute other agreement, instrument or document between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of connection herewith, including without limitation the Merger Agreement. This Agreement sets forth all liability under the terms hereof as matters pertinent to the property so depositedescrow contemplated hereunder, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties no additional obligations of the Escrow Agent shall be issued by inferred from the terms of this Agreement or any other parties hereto or on such parties' behalf unless Agreement. Notwithstanding any other provision in this Agreement (i) the Escrow Agent shall first have given be liable for its specific written consent to such mention(swillful misconduct or gross negligence (each as determined by a final nonappealable order, judgment, decree or ruling of a court of competent jurisdiction) and (ii) in no event shall the Escrow Agent be liable for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits), which consent even if the Escrow Agent has been advised of the likelihood of such loss or damage. Any liability of the Escrow Agent under this Escrow Agreement shall be limited to the amount of fees paid to the Escrow Agent under this Agreement;
(d) be fully protected in acting upon and shall incur no liability with respect to any action taken, suffered or omitted by it, in reliance upon any notice, direction, instruction, consent, statement or other document (including, but not limited to a settlement agreement) believed by it to be genuine and duly authorized, and shall have no duty to inquire into or investigate the validity, accuracy or content of any thereof;
(e) have the right, but not the obligation, to consult with counsel of choice and shall not be unreasonably withheld liable and shall be fully protected in respect of any action taken or delayedomitted to be taken by Escrow Agent either in accordance with the advice of such counsel or in accordance with any opinion of counsel to Seller Representative addressed and delivered to the Escrow Agent;
(f) have the right to perform any of its duties hereunder through its agents, attorneys, custodians or nominees;
(g) not be responsible or liable in any manner for the sufficiency, collection, correctness, genuineness or validity of any revenues, cash, payments, securities, property, funds, investments, income, earnings or other amounts deposited with or held by it or for the identity, authority or rights of any person or entity executing and delivering or purporting to execute or deliver any thereof to the Escrow Agent;
(h) have the right to engage or be interested in any financial or other transaction with the Company or any party hereto or affiliate thereof, and may act as depositary, trustee or agent for, any committee or body of holders of obligations of such party or affiliate, as freely as if it were not the Escrow Agent hereunder;
(i) not be obligated to expend or risk its own funds or to take any action which it believes would expose it to expense or liability or to a risk of incurring expense or liability, unless it has been furnished with assurances of repayment or indemnity satisfactory to it;
(j) not take instructions or directions except those given in accordance with this Escrow Agreement;
(k) not incur any liability for not performing any act, duty, obligation or responsibility by reason of any occurrence beyond the control of the Escrow Agent (including without limitation any act or provision of any present or future law or regulation or governmental authority, any act of God, war, civil disorder or failure of any means of communication); and
(l) not be called upon to advise any person or entity as to any investments with respect to any security, property or funds in escrow hereunder or the dividends, distributions, income, interest or earnings thereon.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in writing pursuant to Section 1 2 of this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement. The Escrow Agent's duties are ministerial in nature. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder.
(c) The Escrow Agent shall not be liableliable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder, except for its own gross negligencenegligence or willful misconduct, willful misconduct or breach of this Escrow Agreement, and, and except with respect to claims based upon such gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the . The other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, taxes, damages and expenses, including reasonable attorney's attorneys fees and disbursements, arising out of and or in connection with this Escrow AgreementAgreement including the legal costs and expenses of defending itself against any claim or liability in connection with its performance hereunder. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds cash held by it hereunder in good faith, in accordance with the terms hereof, or as a result of any liquidation of any such investment prior to its maturity, including, without limitation, any liability for any delays (not resulting from its gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct) in the investment or reinvestment of the Escrow Escrowed Funds, or any loss of interest incident to any such delaysdelays or for the failure of the parties to give the Escrow Agent any instructions to invest or reinvest the Escrowed Funds or any earnings thereon.
(d) The Escrow Agent shall be entitled to conclusively rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to consult with legal counsel of its own choosing at the advice expense of counsel the parties hereto with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with any advice of such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreementcounsel.
(f) The Escrow Agent does not have any interest in the Escrowed Funds deposited hereunder but is serving as escrow holder agent only and has no interest in the Escrow Funds deposited hereunderhaving only possession thereof. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax identification identification, number certification certification, or W-8 forms for nonresident alien certifications. This Section 4(f) paragraph and Section 4(cparagraph (c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility collectability of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds Escrowed Funds, subject to subparagraph (1) below, to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Escrowed Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final and nonappealable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrowed Funds and of which the Escrow FundsAgent has been put on written notice by PL, Salmon Creek or ScoPac, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Escrowed Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Escrowed Funds or (ii) a written agreement executed by the other parties hereto and ScoPac directing delivery of the Escrow Escrowed Funds, in which event the Escrow Agent shall disburse the Escrow Escrowed Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything The Escrow Agent shall be paid by Salmon Creek the fee to the contrary contained herein, be set forth on Schedule B hereto. All fees shall be paid in United States currency and payable in the event of any dispute between United States at the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights office of the Escrow Agent under Section 4(c) aboveAgent. It is understood that the Escrow Agent's fees may be adjusted from time to time to conform with its then current guidelines.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materialsmaterial) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' , behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s)thereto.
(n) The Escrow Agent shall not incur any liability for following the instructions herein contained or expressly provided for, which consent or written instruction given by the parties hereto.
(o) The Escrow Agent shall not be unreasonably withheld required to institute legal proceedings of any kind and shall not be required to initiate or delayeddefend any legal proceedings which may be instituted against it in respect of the subject matter of this Escrow Agreement. If the Escrow Agent does elect to act it will do so only to the extent that it is indemnified to its satisfaction against the cost and expense of such defense or initiation.
(p) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrowed Funds (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Escrowed Funds), the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, the Escrow Agent shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liableliable under this Escrow Agreement, except for its own gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct, and, except with respect to claims based upon such gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agentmisconduct, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent and its directors, officers, agents and employees (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's attorneys’ fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds cash held by it hereunder in good faith, in accordance with the terms hereof, including, including without limitation, limitation any liability for any delays (not resulting from its gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct) in the investment or reinvestment of the Escrow FundsEscrowed Property, or any loss of interest incident to any such delays. This Section 6(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder by the Company or the Placement Agent without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume assume, if in good faith, that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants and other skilled persons to the advice of counsel be selected and retained by it with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent does not have, for tax reporting purposes, any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has no only. The parties hereto agree that, for tax reporting purposes, all interest or other income earned from the investment of the Escrowed Property or any portion thereof in any tax year (i) to the extent such interest or other income is distributed by the Escrow Funds deposited hereunder. Agent to any person or entity pursuant to the terms of this Escrow Agreement during such tax year, shall be reported as allocated to such person or entity, and (ii) otherwise shall be reported as allocated to the Investors, in proportion to their respective Subscription Payment as set forth on the final Subscriber List.
(g) Any payments of income from this the Escrow Agreement Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax identification I.D., number certification certification, or nonresident non-resident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination certifications prior to the execution of this Escrow Agreement or the resignation of the Escrow AgentAgreement.
(gh) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents document or instrument held by or delivered to it.
(hi) The Escrow Agent shall not be called upon to advise any party as to the wisdom in of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(ij) The Escrow Agent (and any successor Escrow Agentescrow agent) may at any time may be discharged from its duties and obligations hereunder by the delivery to it of the Offering Termination Notice signed by both the Company and the Placement Agent or at any time may resign as by giving written notice to such by delivering effect to the Company and the Placement Agent not less than 60 days prior to the date when such resignation shall take effect. Upon the effectiveness of any such termination or resignation, the Escrow Funds Agent shall promptly deliver the Escrowed Property to any successor Escrow Agent escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdictionjurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow AgreementAgreement except to the extent resulting from its gross negligence or willful misconduct. The termination or resignation of the Escrow Agent will shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is that is: (A) 30 days after the date of delivery to the Escrow Agent of its written notice the Offering Termination Notice or (B) 60 days after the date of resignation delivery to the other parties heretohereto of the Escrow Agent’s written notice of resignation. If at that the time of any termination or resignation the Escrow Agent has not received a designation of a successor Escrow Agentescrow agent, the Escrow Agent's sole responsibility after that time shall be Agent may apply to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The jurisdiction for appointment of a successor Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein and shall, until such time as a means successor Escrow Agent is appointed, maintain the Escrowed Property pursuant to resolve disputes the terms and may rely without any liability upon the contents thereofconditions of this Escrow Agreement.
(k) In the event of any disagreement among or between the other parties hereto and/or the Investors of the Shares resulting in adverse claims or demands being made in connection with the Escrow FundsEscrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to refrain from taking any action and its sole obligation shall be to retain the Escrow Funds Escrowed Property until the Escrow Agent shall have received (i) a final nonappealable and non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Funds Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the affected Investors, if any, directing delivery of the Escrow FundsEscrowed Property, in which event the Escrow Agent shall disburse the Escrow Funds Escrowed Property in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to As consideration for the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, performance by the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property duties herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermoredescribed, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent fees determined in accordance with the terms set forth on Exhibit E hereto (made a part of this Escrow Agreement as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunderif herein set forth). In addition, the Company agrees to pay reimburse the Escrow Agent for all reasonable expenses, disbursements and advances expenses of third parties incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, fees and expenses and disbursements of its outside counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. Each party agrees to accept service of any summons, complaint or other initial pleading made in the manner provided for the giving of notices in Section 5 hereof, provided that nothing in this Section 6(m) shall affect the right of any party to serve such summons, complaint or other initial pleading in any other manner permitted by law.
(n) No printed or other matter in any language (including, without limitation, prospectusesthe Registration Statement, notices, reports and promotional materialsmaterial) which mentions the Escrow Agent's ’s name or the rights, powers powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' ’ behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), thereto (which consent shall not be unreasonably withheld withheld, conditioned or delayed). The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement (including all exhibits thereto) and the Placement Agency Agreement and in the filings made by the Company under the Securities Exchange Act of 1934, as amended, including the filing of this Escrow Agreement as an exhibit thereto.
(o) Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(p) In the event funds transfer instructions are given (other than in writing at the time of execution of this Escrow Agreement), whether in writing or by telecopy, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on Exhibit F hereto, and the Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. Each funds transfer instruction shall be executed by an authorized signatory, a list of such authorized signatories is set forth on Exhibit F. The undersigned is authorized to certify that the signatories on Exhibit F are authorized signatories. The persons and telephone numbers for call-backs may be changed only in a writing actually received and acknowledged by the Escrow Agent. The Escrow Agent and the beneficiary’s bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by the Placement Agent or the Company to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank. The Escrow Agent may apply any of the escrowed funds for any payment order it executes using any such identifying number, even where its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary’s bank or an intermediary bank designated. The parties to this Escrow Agreement acknowledge that these security procedures are commercially reasonable.
Appears in 1 contract
Sources: Placement Agency Agreement (Fleetwood Enterprises Inc/De/)
Concerning the Escrow Agent. Notwithstanding any provision contained herein to the contrary, but subject to the last sentence of clause (ak) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liablebelow, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly including its officers, directors, employees and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all lossesagents, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.shall:
(da) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted under this Agreement so long as it shall have acted in accordance with such advice, except for any action constituting good faith and without gross negligence, negligence or willful misconduct or a breach of this Escrow Agreement.misconduct;
(fb) The Escrow Agent is serving as escrow holder only and has have no interest in responsibility to inquire into or determine the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification genuineness, authenticity, or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility sufficiency of any security securities, checks, or other documents or instrument held by or delivered instruments submitted to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising it in connection with this Escrow Agreement. The resignation its duties hereunder;
(c) be entitled to deem the signatories of any documents or instruments submitted to it hereunder as being those purported to be authorized to sign such documents or instruments on behalf of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time and shall be entitled to safekeep rely upon the Escrow Funds until receipt genuineness of a designation the signatures of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents such signatories without inquiry and without requiring substantiating evidence of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fundskind, or in the event provided that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall believes such signatories are authorized and such signatures are genuine;
(d) be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed refrain from taking any action contemplated by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, this Agreement in the event that it becomes aware of any dispute disagreement between the parties hereto as to any facts or as to the facts happening of defaultany contemplated event precedent to such action;
(e) have no responsibility or liability for any diminution in value of any assets held hereunder which may result from any investments or reinvestment made in accordance with Section 2;
(f) be entitled to compensation for its services hereunder, to be paid 50% by the Seller and 50% by the Buyer as per Exhibit A attached hereto, which is made a part hereof, and for reimbursement of its reasonable out-of-pocket expenses including, but not by way of limitation, the validity reasonable fees and costs of attorneys or meaning agents which it may find necessary to engage in performance of these instructions or its duties hereunder, all to be paid by the Seller and the Buyer;
(g) be entitled and is hereby granted the right to set off and deduct any other fact or matter relating to the transaction between the partiesunpaid fees, non-reimbursed reasonable out-of-pocket expenses and unsatisfied indemnification rights from amounts on deposit in the Escrow Agent is instructed as follows:Account;
(ih) That it shall be under no obligation to act, except as and to invest the extent directed under process deposited funds or order of court, or the income generated thereby until it has been adequately indemnified to its full satisfactionreceived a Form W-9 from the Seller and the Buyer, regardless of whether such party is exempt from reporting or withholding requirements under the Internal Revenue Code of 1986, as amended;
(i) be, and hereby is, jointly and severally indemnified and saved harmless by the Seller and the Buyer from all losses, liabilities, reasonable costs and reasonable expenses, including reasonable attorney fees and expenses, which may be incurred by it as a result of its acceptance of the Escrow Account or arising from the performance of its duties hereunder, unless such losses, liabilities, costs and expenses shall sustain no liability for have been finally adjudicated to have been primarily caused by the bad faith, willful misconduct or gross negligence of the Escrow Agent, and such indemnification shall survive its failure resignation or removal, or the termination of this Agreement;
(j) in the event that (i) any dispute shall arise between the parties with respect to act pending such process the disposition or court order disbursement of any of the assets held hereunder or indemnification; and
(ii) That it may the Escrow Agent shall be uncertain as to how to proceed in its sole and absolute discretiona situation not explicitly addressed by the terms of this Agreement whether because of conflicting demands by the other parties hereto or otherwise, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, be permitted to interplead all of the District Court assets held hereunder into a court of the City and County of Denver, State of Colorado, interplead the parties heretocompetent jurisdiction, and upon so depositing such property thereafter be fully relieved from any and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as or obligation with respect to the property so deposited, and furthermore, the such interpleaded assets. The parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves other than the Escrow Agent further agree to the jurisdiction of said court and do hereby appoint the then Clerk, pursue any redress or acting Clerk, of said court as their Agent for the service of all process recourse in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of a dispute, without making the Escrow Agent under Section 4(c) above.a party to same;
(mk) The Company agrees to pay the Escrow Agent have only those duties as compensation are specifically provided herein, which shall be deemed purely ministerial in nature, and shall under no circumstance be deemed a fiduciary for the services any of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services parties to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements this Agreement; and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties no additional obligations of the Escrow Agent shall be issued by inferred from the terms of this Agreement or any other agreement. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument or document between the other parties hereto hereto, in connection herewith, including without limitation the Purchase Agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (i) DAMAGES, LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY RESULTED FROM THE ESCROW AGENT’S, BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (ii) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION;
(l) have the right, but not the obligation, to consult with counsel of choice and shall not be liable for action taken or on omitted to be taken by Escrow Agent in accordance with advice of such parties' behalf unless counsel or any opinion of counsel to the Seller addressed and delivered to the Escrow Agent; and
(m) have the right to perform any of its duties hereunder through its agents, attorneys, custodians or nominees. Any banking association or corporation into which the Escrow Agent may be merged, converted or with which the Escrow Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent shall first have given its specific written consent be a party, or any banking association or corporation to which all or substantially all of the corporate trust business of the Escrow Agent shall be transferred, shall succeed to all the Escrow Agent’s rights, obligations and immunities hereunder without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding. The Escrow Agent shall provide prompt notice to the Buyer and the Seller of any such mention(s), which consent shall not be unreasonably withheld or delayedtransfer.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) 5.01 The Escrow Agent shall be entitled to rely reasonable compensation for its services hereunder and shall be reimbursed for all reasonable expenses, disbursements and advances (including reasonable attorneys' fees and expenses) incurred or made by it in performance of its duties hereunder. Such reasonable compensation, disbursement, expenses and advances shall be borne by Vizacom and shall be paid promptly upon request by the Escrow Agent.
5.02 The Escrow Agent may resign and be discharged from its duties hereunder at any ordertime by giving notice (a "Resignation Notice") of such resignation to Vizacom and Stockholders' Representative specifying a date (not less than 30 days after the giving of such notice) when such resignation shall take effect. Promptly after such Registration Notice, judgment(a) if as of the date of the Resignation Notice, certificationNeil M. Kaufman is not a member o▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ent, demandthen any law firm of which Mr. Kaufman is a member or partne▇ ▇▇▇▇▇ ▇▇▇ve as successor Escrow Agent, if such firm is willing to so serve, or (b) in all other events, Vizacom and the Stockholders' Representative shall appoint a mutually agreeable successor Escrow Agent, such successor Escrow Agent to become Escrow Agent hereunder upon the resignation date specified in such notice. If Vizacom and the Stockholders' Representative are unable to agree upon a successor Escrow Agent with 30 days after such notice, the Escrow Agent shall have the right to petition a court of competent jurisdiction to appoint a successor, and the Escrow Agent shall continue to serve until its successor accepts the escrow and receives the Escrowed Property.
5.03 The Escrow Agent undertakes to perform only such duties as are specifically set forth herein. The Escrow Agent acting or refraining from acting in good faith shall not be liable for any mistake of fact or error of judgment by it or for any acts or omissions by it of any kind unless caused by negligence or willful misconduct, and shall be entitled to rely, and shall be protected in doing so, upon (a) any written notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice have been signed or advice, accept receipt of presented by the proper party or execute any document, or make any statement in connection with the provisions hereof, has been parties duly authorized to do so.
, and (eb) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not (which may be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation 's own choosing, so long as such counsel is not counsel to the validity, value, genuineness Vizacom or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow AgreementStockholders' Representative). The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means submitted to resolve disputes it hereunder and may shall be entitled in good faith to rely without any liability upon the contents thereof. The Escrow Agent has no responsibilities under, and shall be deemed to have no knowledge of, the provisions of the Merger Agreement.
(k) 5.04 The Stockholders and Vizacom, jointly and severally, agree to indemnify the Escrow Agent and hold it harmless against any and all liabilities incurred by it hereunder as a consequence of such indemnifying party's action and and the Stockholders and Vizacom, jointly and severally, further agree to indemnify the Escrow Agent and hold it harmless against any and all losses, costs, fees and expenses incurred by the Escrow Agent which are not a consequence of its actions or failure to act, except, in either case for liabilities incurred by the Escrow Agent resulting from its own gross negligence or willful misconduct. The indemnification provided pursuant to this section shall survive the resignation of the Escrow Agent or the termination of this Escrow Agreement.
5.05 In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent becomes involved in good faith any litigation or dispute by reason hereof, it is in doubt as hereby authorized to what action it should take hereunder, deposit with the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order clerk of a court of competent jurisdiction directing delivery the Escrowed Property held by it pursuant hereto and, thereupon, shall stand fully relieved and discharged of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fundsany further duties hereunder. Also, in which the event the Escrow Agent shall disburse is threatened with litigation by reason hereof, it is hereby authorized to interplead all interested parties in any court of competent jurisdiction and to deposit with the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion clerk of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order the Escrowed Property held by it pursuant hereto and, thereupon, shall stand fully relieved and legal opinions without discharged of any further questionduties hereunder.
(l) Notwithstanding anything to the contrary contained herein, in 5.06 In the event of any claim, dispute between or litigation concerning the parties hereto as to the facts of defaultMerger Agreement or this Escrow Agreement, the validity or meaning of these instructions Kaufman & Moomjian, LLC or any other fact or matter relating su▇▇▇▇▇▇▇ fi▇▇ ▇▇ ▇▇ccessor Escrow Agreement shall nevertheless have the unqualified right to the transaction between the partiesrepresent Vizacom, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as its officers and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may directors in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution respect of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent claim, dispute or litigation, notwithstanding that it is acting as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Escrow Agreement (Vizacom Inc)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the undersigned that:
(a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations on the part of the Escrow Agent shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(cb) The Escrow Agent shall not be liable, except liable for any action or failure to act in its own gross negligence, capacity as Escrow Agent hereunder unless such action or failure to act shall constitute willful misconduct or breach gross negligence on the part of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto in which case there shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in be no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delaysindemnification obligations.
(dc) The Escrow Agent shall be entitled to rely upon any order, ; judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereofthereof . The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume assume, unless he has actual knowledge to the contrary, that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(ed) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreementas provided in paragraph 8(b) above.
(fe) The Escrow Agent does nor have any interest in the Debentures or Conversion Shares or any other property deposited hereunder but is serving as escrow holder only and has no interest in having only possession thereof, and is not charged with any duty or responsibility to determine the Escrow Funds deposited hereunder. Any payments validity or enforceability of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agentsuch documents.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(if) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds Debentures to any successor Escrow Agent Agent, jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow AgreementAgreement thereafter. The resignation of the Escrow Agent will take effect on the earlier of (ia) the appointment of a successor (including a court of competent jurisdiction) or (iib) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds Debentures and not make delivery or disposition thereof until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kg) In the event of any disagreement between among the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow FundsDebentures, or in the event that the Escrow Agent in good faith is in doubt as to what action it otherwise determines that the Debentures should take hereunderbe retained, then the Escrow Agent shall be entitled to may retain the Escrow Funds Debentures until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds Debentures, or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow FundsDebentures, in which event case the Escrow Agent shall disburse promptly deliver the Escrow Funds Debentures in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of by counsel for the presenting party reasonably satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions opinion without further question.
(lh) Notwithstanding anything This Escrow Agreement shall be binding upon and inure solely to the contrary contained herein, in the event benefit of any dispute between the parties hereto as and their respective successors (including successors by way of merger) and assigns, heirs, administrators and representatives and shall not be enforceable by or inure to the facts benefit of default, the validity or meaning of these instructions or any other fact or matter relating third parry except as provided in paragraph (g) with respect to the transaction between the parties, a resignation by the Escrow Agent is instructed as follows:Agent
(i) That it shall This Escrow Agreement may be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead modified by a writing signed by all the parties hereto, and upon so depositing such property and filing its complaint in interpleader it no waiver hereunder shall be relieved of all liability under effective unless in a writing signed by the terms hereof as party to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) abovebe charged.
(mj) The Company BSC acknowledges and agrees to pay that in any dispute involving this Escrow Agreement, the Agreement or the Debentures, that Escrow Agent may also act as compensation for counsel to the services of the Escrow Agent hereunderPurchaser, a fee of $1,500 as payment and BSC shall not assert in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the such circumstances that Escrow Agent's name or the rights, powers or duties representation of the Escrow Agent Purchaser shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedconstitute a conflict of interest.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 3 of this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement. The Escrow Agent's duties are ministerial in nature.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct, and, except with respect to claims based upon such gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, taxes, damages and expenses, including reasonable attorney's costs of investigation, attorneys' fees and disbursements, arising out of and or in connection with this Escrow AgreementAgreement including the legal costs and expenses of defending itself against any claim or liability in connection with its performance hereunder. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds cash held by it hereunder in good faith, in accordance with the terms hereof, includingor as a result of any liquidation of any such investment prior to its maturity, without limitation, including any liability for any delays (not resulting from its gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct) in the investment or reinvestment of the Escrow Escrowed Funds, or any loss of interest incident to any such delaysdelays or for the failure of the parties to give the Escrow Agent any instructions to invest or reinvest the escrowed funds or any earnings thereon. The Escrow Agent shall be under no duty to institute any suit, or to take any remedial procedures under this Escrow Agreement, or to enter any appearance or in any way defend any suit in which it may be made a defendant hereunder until it shall be indemnified as provided above.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent does not have any interest in the Escrowed Shares or Escrowed Funds deposited hereunder but is serving as escrow holder agent only and has no interest in the Escrow Funds deposited hereunderhaving only possession thereof. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will Parent and Stockholder Agent shall provide the Escrow Agent with appropriate W-9 forms for tax identification identification, number certification certification, or nonresident alien certificationscertifications as the Escrow Agent may reasonably require (collectively, "Tax Reporting Documentation") to comply with its tax reporting obligations. This Section 4(fUnless and until the Escrow Agent has received all Tax Reporting Documentation with respect to any Stockholder on behalf of whom the Escrow Agent is required to make a payment, the Escrow Agent may withhold such amount as backup withholding (currently 31%) and Section 4(c) shall survive notwithstanding other amounts as required by applicable law, from any termination of this Escrow Agreement or the resignation of the Escrow Agentsuch payment to cover such Stockholder's payment liability.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility collectability of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds Escrowed Shares and the Escrowed Funds, subject to Section 4(l), to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties heretohereto provided that, if no successor Escrow Agent shall have been appointed on the effective date of the resignation of the resigning Escrow Agent hereunder, the resigning Escrow Agent may deliver the Escrowed Shares and the Escrowed Funds into a court of competent jurisdiction pursuant to Section 4(q) and thereupon shall be fully relieved and discharged of any further duties hereunder. The resigning Escrow Agent shall be entitled to payment of any unpaid fees (which shall be pro-rated as of the effective date of the resignation) and expenses and to reimbursement by Parent for any reasonable expenses incurred in connection with the transfer of the Escrowed Shares and the Escrowed Funds pursuant to and in accordance with the provisions of this section. If at that time the Escrow Agent has not delivered the Escrowed Shares and the Escrowed Funds into a court of competent jurisdiction or received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Escrowed Shares and the Escrowed Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final and nonappealable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes court order and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto Purchaser and any Stockholder resulting in adverse claims or demands being made in connection with the Escrow Escrowed Shares or Escrowed Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Escrowed Shares or Escrowed Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Escrowed Shares or Escrowed Funds or (ii) a written agreement executed by the other parties hereto Purchaser and Stockholder Agent directing delivery of the Escrow Escrowed Shares or Escrowed Funds, in which event the Escrow Agent shall disburse the Escrow Escrowed Shares or Escrowed Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything The Escrow Agent shall be paid as set forth on Exhibit A hereto and shall be reimbursed for the fees and disbursements of its attorneys by Parent or, at the request to the contrary contained hereinEscrow Agent, Parent shall pay such fees and disbursements directly to its attorneys promptly following execution of this Escrow Agreement. All fees and payments shall be paid in United States currency and payable in the event of any dispute between United States at the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights office of the Escrow Agent under Section 4(c) aboveAgent.
(m) The Company agrees As security for the timely and full payment and satisfaction of all of the present and future obligations of the parties to pay the Escrow Agent as compensation for under this Agreement, including without limitation the services indemnity obligations under Section 4(c), whether joint or several, each of the Stockholders, the Stockholder Agent and Parent hereby grants to the Escrow Agent hereundera continuing security interest in and to any and all of the Escrowed Shares and Escrowed Funds, a fee whether now existing or hereafter acquired or created, together with the products and proceeds thereof, all payments and other distributions with respect thereto, and any and all investments, renewals, substitutions, modifications and extensions of $1,500 as payment in full for any and all of the services to be rendered by the foregoing. The Escrow Agent hereundershall have all of the rights and remedies of a secured party under the Uniform Commercial Code. In addition, in the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by event the Escrow Agent has not received any payment, indemnity, reimbursement or other amount due it under this Agreement, then, notwithstanding any other term or provision of this Agreement, the Escrow Agent may in performance its discretion set off and apply so much of the Escrowed Shares and Escrowed Funds as is required to pay and satisfy those obligations. Notwithstanding any obligation to make payments and deliveries hereunder, in addition to its duties hereunder (including reasonable feesrights under Section 4(c), expenses the Escrow Agent may retain and disbursements hold for such time as it reasonably deems necessary such amount of its counselthe Escrowed Shares and Escrowed Funds as it shall from time to time reasonably deem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 4(c).
(n) No printed In the event any amount of Escrowed Shares and Escrowed Funds released to a party under this Agreement is invalidated, declared to be fraudulent or preferential or must otherwise be restored or returned by the Escrow Agent in connection with the insolvency, bankruptcy or reorganization of such party, whether by order of or settlement before any court or other matter authority or otherwise, such party shall contribute back to the Escrow Agent an amount (in cash or stock) such that such party will be affected by that invalidation, declaration, restoration or return ratably in proportion to the distributions it received under this Agreement, together with any language related assignment, release or other instrument or document the Escrow Agent may request to restore the status quo ante.
(includingo) To the extent that the Escrow Agent becomes liable for the payment of taxes, without limitationincluding withholding taxes, prospectusesin respect of income derived from the investment of funds held hereunder or any payment made hereunder (collectively, noticesthe "Taxes"), reports the Escrow Agent may pay such Taxes. The Escrow Agent may withhold from any payment of the Escrowed Shares and promotional materialsEscrowed Funds such amount as the Escrow Agent estimates to be sufficient to provide for the payment of such Taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for Taxes and for any penalties or interest in respect of Taxes on such investment income or payments in the manner provided in Section 4(c). Notwithstanding the foregoing, Taxes shall not include any income, franchise or other similar taxes imposed on (or measured by) which mentions the net income of the Escrow Agent's name .
(p) Unless specifically required by this Agreement or by law, Escrow Agent shall not be required to give any bond or surety or report to any court despite any custom to the rightscontrary and the Escrow Agent, powers if required to give any such bond or duties of surety, shall have a lien against the Escrowed Shares and Escrowed Funds in the amount thereof; and the Escrow Agent shall not be issued required to take notice or be deemed to have notice of any default or other fact or event under this Agreement unless Escrow Agent shall be notified in writing of such default, fact or event.
(q) In the event Escrow Agent becomes a party to a litigation by reason hereof it is hereby authorized to deposit with the clerk of the court in which the litigation is pending, any and all Escrowed Shares and Escrowed Funds, or other property held by it pursuant hereto, less its fees, expenses and advances, and thereupon shall stand fully relieved and discharged of any further duties hereunder. Also, in the event Escrow Agent is threatened to be made a party to a litigation by reason hereof, or receives conflicting demands or instructions with respect to the Escrow Deposit it is hereby authorized to implead all interested parties hereto in any court of competent jurisdiction and to deposit with the clerk of such court any such Escrowed Shares and Escrowed Funds, or on such parties' behalf unless other property held by it pursuant hereto, less its fees, expenses and advances, and thereupon shall stand fully relieved and discharged of any further duties hereunder.
(r) Except as expressly provided herein, the Escrow Agent shall first have given its specific written consent no responsibility for reporting to such mention(s), which consent shall not be unreasonably withheld or delayedfiling with any governmental or regulatory agency or entity on behalf of any party hereto.
Appears in 1 contract
Sources: Escrow Agreement (WRC Media Inc)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the have no duties or responsibilities except those expressly set forth herein. The Escrow Funds held by it Agent may consult with counsel and shall have no liability hereunder any greater degree of care than it gives except for its own similar property gross negligence or willful misconduct. It may rely on any notice, instruction, certificate, statement, request, consent, confirmation, agreement or other instrument which it reasonably believes to be genuine and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreementhave been signed or presented by a proper person or persons.
(b) This Escrow Agreement expressly sets forth all the duties of the The Escrow Agent shall have no duties with respect to any agreement or agreements with respect to any or all of the Escrow Funds other than as provided in this Agreement. In the event that any of the terms and provisions of any other agreement between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control in all matters pertinent heretorespects. No implied duties or obligations Notwithstanding any provision to the contrary contained in any other agreement, the Escrow Agent shall have no interest in the Escrow Funds except as provided in this Agreement.
(c) So long as the Escrow Agent shall have any obligation to pay any amount to the Redeeming Stockholders and/or CII from the Escrow Funds hereunder, the Escrow Agent shall keep proper books of record and account, in which full and correct entries shall be read into made of all receipts, disbursements and investment activity in the Escrow Account.
(d) The Escrow Agent shall not be bound by any modification of this Escrow Agreement against affecting the rights, duties and obligations of the Escrow Agent, unless such modification shall be in writing and signed by the other parties hereto, and the Escrow Agent shall have given its prior written consent thereto. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach modification of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, Agreement unless the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service have received written notice thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant resign as escrow agent at any time by giving thirty (30) days written notice by registered or certified mail to CII and a Redeeming Stockholders' Representative and such resignation shall take effect at the end of such 30 days or upon earlier appointment of a successor. A successor escrow agent hereunder may be appointed by designation in writing signed by CII and a Redeeming Stockholders' Representative. CII and the Redeeming Stockholders' Representatives undertake to utilize their best efforts to arrange for the appointment of a successor escrow agent. If any instrument of acceptance by a successor escrow agent shall not have been delivered to the advice Escrow Agent within sixty (60) days after the giving of counsel with respect to such notice of resignation, the resigning Escrow Agent may at the expense of the Redeeming Stockholders and CII petition any matter relating to this Escrow Agreement and shall not be liable court of competent jurisdiction for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or the appointment of a breach of this Escrow Agreementsuccessor escrow agent.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide If at any time hereafter the Escrow Agent with appropriate W-9 forms for tax identification number certification shall resign, be removed, be dissolved or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination otherwise become incapable of this Escrow Agreement acting, or the resignation bank or trust company acting as the Escrow Agent shall be taken over by any government official, agency, department or board, or the position of the Escrow AgentAgent shall become vacant for any of the foregoing reasons or for any other reason, a Redeeming Stockholders' Representative and CII shall appoint a successor escrow agent to fill such vacancy.
(g) The Escrow Agent makes no representation as Every successor escrow agent appointed hereunder shall execute, acknowledge and deliver to the validityits predecessor, valueand also to CII and a Redeeming Stockholders' Representative, genuineness or the collectibility of any security or other documents or an instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited writing accepting such appointment hereunder.
(i) The Escrow Agent (, and any thereupon such successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writingescrow agent, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands become fully vested with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, immunities and powers or duties and shall be subject to all of the Escrow Agent duties and obligations, of its predecessor; and every predecessor escrow agent shall be issued deliver all property and moneys held by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given it hereunder to its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedsuccessor.
Appears in 1 contract
Sources: Indemnification and Escrow Agreement (Kilovac International Inc)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Company, MCI and Subscriber acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the Escrow Funds property held by it Escrow Agent hereunder any greater degree of care than it Escrow Agent gives its own similar property property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Company, MCI and Subscriber acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be required liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to invest be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Company, MCI and Subscriber, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any funds held of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the fees of outside counsel and other costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to The Company, MCI and Subscriber under this Agreement and to no other person.
(c) The Company, MCI and Subscriber jointly and severally agree to reimburse the Escrow Agent for outside counsel fees, to the extent authorized hereunder except and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as directed pursuant Escrow Agent hereunder by giving five (5) days prior written notice of resignation to Section 1 the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, The Company, MCI and Subscriber will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by The Company, MCI and Subscriber. If no successor Escrow Agent is named by The Company, MCI and Subscriber, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(bf) This Escrow Agreement expressly sets forth all exclusively the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No thereto and no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation shall be permitted to act as counsel for the Subscriber in any dispute as to the validitydisposition of the Company Documents and Subscriber Documents, valuein any other dispute between The Company, genuineness MCI and Subscriber, whether or not the collectibility of any security or other documents or instrument held by or delivered Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to itact as the Escrow Agent hereunder.
(h) The Escrow Agent provisions of this Section 4.1 shall not be called upon to advise any party as to survive the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties termination of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedthis Agreement.
Appears in 1 contract
Concerning the Escrow Agent. (a) The a. Each party to this Agreement acknowledges and agrees that the Escrow Agent (i) shall not be under responsible for any duty of the agreements referred to give or described herein (including without limitation the Escrow Funds held by it hereunder any greater degree SPA), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of care than it gives such duties as are expressly and specifically set forth in this Make Good Agreement on its own similar property part to be performed, each of which is ministerial (and shall not be required construed to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(bbe fiduciary) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any in nature, and all matters pertinent hereto. No no implied duties or obligations of any kind shall be read into this Escrow Make Good Agreement against or on the Escrow Agent. The Escrow Agent shall not be bound by the provisions part of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the (iii) shall not be obligated to take any legal or other parties hereto action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall jointly have been furnished with acceptable indemnification, (iv) may rely on and severally indemnify and hold harmless the Escrow Agent shall be protected in acting or refraining from acting upon any written notice, instruction (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligencewire transfer instructions, willful misconduct whether incorporated herein or breach of this Escrow Agreement) provided in the investment or reinvestment of the Escrow Fundsa separate written instruction), or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderinstrument, judgmentstatement, certificationcertificate, demand, notice, instrument request or other writing delivered document furnished to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably and believed by it to be genuine and may assume that to have been signed or presented by the proper person, and shall have no responsibility to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any person purporting to give notice or advice, accept receipt of or execute any documentsignature appearing thereon), or make of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any statement instance shall be full and complete authorization and protection in connection respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the provisions hereof, has been duly authorized to do so.
(e) opinion or advice of such counsel. The Escrow Agent has acted as legal counsel for the Company and may continue to act pursuant as legal counsel for the Company from time to time, notwithstanding its duties as the Escrow Agent hereunder. The Buyers and all other parties to this Agreement consent to the advice Escrow Agent in such capacity as legal counsel for the Company and waive any claim that such representation represents a conflict of counsel with respect to any matter relating to interest on the part of the Escrow Agent. The Buyers understand that the Company and the Escrow Agent are relying explicitly on the foregoing provision in entering into this Escrow Agreement and Agreement.
b. The Escrow Agent shall not be liable to anyone for any action taken or omitted in accordance with such advice, to be taken by it hereunder except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation case of the Escrow Agent.
(g) The Escrow Agent makes ’s gross negligence or willful misconduct in breach of the terms of this Make Good Agreement. In no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent event shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor liable for indirect, punitive, special or consequential damage or loss (including a court of competent jurisdictionbut not limited to lost profits) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time whatsoever, even if the Escrow Agent has not received a designation been informed of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep likelihood of such loss or damage and regardless of the Escrow Funds until receipt form of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdictionaction.
(j) c. The Escrow Agent shall have no more or less responsibility for the contents or liability on account of any writing action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by the arbitrators Escrow Agent than any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except to the extent that such action or omission of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon book-entry depository, securities intermediary or other subescrow agent was caused by the contents thereofEscrow Agent’s own gross negligence or willful misconduct in breach of this Make Good Agreement.
(k) In the event d. The Escrow Agent is hereby authorized, in making or disposing of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fundsinvestment permitted by this Make Good Agreement, or in carrying out any sale of the event that Escrow Property permitted by this Make Good Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as a subagent of the Escrow Agent or for any third person or dealing as principal for its own account.
e. Notwithstanding any term appearing in good faith is this Make Good Agreement to the contrary, in doubt as to what action it should take hereunder, no instance shall the Escrow Agent shall be entitled required or obligated to retain distribute any Escrow Property (or take other action that may be called for hereunder to be taken by the Escrow Funds until the Escrow Agent shall have received Agent) sooner than two (2) Business Days after (i) a final nonappealable order of a court of competent jurisdiction directing delivery of it has received the Escrow Funds applicable documents required under this Make Good Agreement in good form, or (ii) a written agreement executed by the other parties hereto directing delivery passage of the Escrow Fundsapplicable time period (or both, in which event as applicable under the Escrow Agent shall disburse terms of this Make Good Agreement), as the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory case may be.
f. All payments to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it hereunder shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) aboveU.S. dollars.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Make Good Escrow Agreement (L & L International Holdings, Inc)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) 5.01 The Escrow Agent shall be entitled to rely reasonable compensation for its services hereunder and shall be reimbursed for all reasonable expenses, disbursements and advances (including reasonable attorneys' fees and expenses) incurred or made by it in performance of its duties hereunder. Such reasonable compensation, disbursement, expenses and advances shall be borne by Vizacom and shall be paid promptly upon request by the Escrow Agent.
5.02 The Escrow Agent may resign and be discharged from its duties hereunder at any ordertime by giving notice (a "Resignation Notice") of such resignation to Vizacom and Stockholders' Representative specifying a date (not less than 30 days after the giving of such notice) when such resignation shall take effect. Promptly after such Resignation Notice, judgmentVizacom and Stockholders' Representative shall appoint a mutually agreeable successor Escrow Agent, certificationsuch successor Escrow Agent to become Escrow Agent hereunder upon the resignation date specified in such notice. If Vizacom and Stockholders' Representative are unable to agree upon a successor Escrow Agent within 30 days after such notice, demandthe Escrow Agent shall have the right to petition a court of competent jurisdiction to appoint a successor, and the Escrow Agent shall continue to serve until its successor accepts the escrow and receives the Escrowed Property.
5.03 The Escrow Agent undertakes to perform only such duties as are specifically set forth herein. The Escrow Agent acting or refraining from acting in good faith shall not be liable for any mistake of fact or error of judgment by it or for any acts or omissions by it of any kind unless caused by negligence or willful misconduct, and shall be entitled to rely, and shall be protected in doing so, upon (a) any written notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice have been signed or advice, accept receipt of presented by the proper party or execute any document, or make any statement in connection with the provisions hereof, has been parties duly authorized to do so.
, and (eb) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not (which may be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement's own choosing). The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means submitted to resolve disputes it hereunder and may shall be entitled in good faith to rely without any liability upon the contents thereof. The Escrow Agent has no responsibilities under, and shall be deemed to have no knowledge of, the provisions of the Merger Agreement.
(k) 5.04 Vizacom and the Stockholders, jointly and severally, agree to indemnify the Escrow Agent and hold it harmless against any and all liabilities incurred by it hereunder as a consequence of such indemnifying party's action, and Vizacom and the Stockholders, jointly and severally, further agree to indemnify the Escrow Agent and hold it harmless against any and all losses, costs, fees and expenses incurred by the Escrow Agent except, in either case for liabilities incurred by the Escrow Agent resulting from its own gross negligence or willful misconduct. The indemnification provided pursuant to this section shall survive the resignation of the Escrow Agent or the termination of this Escrow Agreement.
5.05 In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent becomes involved in good faith any litigation or dispute by reason hereof, it is in doubt as hereby authorized to what action it should take hereunder, deposit with the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order clerk of a court of competent jurisdiction directing delivery the Escrowed Property held by it pursuant hereto and, thereupon, shall stand fully relieved and discharged of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fundsany further duties hereunder. Also, in which the event the Escrow Agent shall disburse is threatened with litigation by reason hereof, it is hereby authorized to interplead all interested parties in any court of competent jurisdiction and to deposit with the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion clerk of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order the Escrowed Property held by it pursuant hereto and, thereupon, shall stand fully relieved and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event discharged of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) abovefurther duties hereunder.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Escrow Agreement (Vizacom Inc)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 3 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto with respect to the subject matter hereof except this Escrow Agreement. The Escrow Agent's duties are ministerial in nature.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct, and, except with respect to claims based upon such gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, taxes (not including any taxes of the Escrow Agent measured by or imposed upon income, and not including any franchise or excise taxes), damages and expenses, including reasonable attorney's attorneys' fees and disbursements, arising out of and or in connection with this Escrow AgreementAgreement including the legal costs and expenses of defending itself against any claim or liability in connection with its performance hereunder. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds cash held by it hereunder in good faith, in accordance with the terms hereof, includingor as a result of any liquidation of any such investment prior to its maturity, without limitation, including any liability for any delays (not resulting from its gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct) in the investment or reinvestment of the Escrow Escrowed Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel reasonably acceptable to both Sellers' Representatives and Buyer with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent does not have any interest in any Escrowed Funds deposited hereunder but is serving as escrow holder agent only and has no interest in the Escrow Funds deposited hereunderhaving only possession thereof. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will Sellers' Representatives shall provide the Escrow Agent with appropriate W-9 or other certification forms for tax identification number certification certification, or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agentcertifications with respect to Sellers.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility collectability of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (Sellers' Representatives and any successor Escrow Agent) Buyer may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon remove the Escrow Agent and terminate this Escrow Agreement upon ten days prior written notice signed by both parties. Upon such removal and termination, all then existing Escrowed Funds (including all investments) shall be discharged of and from any and all further obligations arising transferred in connection accordance with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order instructions of a court of competent jurisdictionSellers' Representatives and Buyer.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes court order and may rely without any liability upon the contents thereof.
(k) In The Escrow Agent shall be paid $[ ] annually. Sellers' Representative shall on behalf of the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with Sellers, pay to the Escrow Funds, or Agent its fees for the acceptance and administration of this Escrow Agreement (pursuant to the terms of Annex A attached hereto). All fees shall be paid in United States currency and payable in the event United States at the office of the Escrow Agent. Notwithstanding anything in this Escrow Agreement to the contrary, at any time that the Escrow Agent in good faith is in doubt as authorized or directed or otherwise required to what action it should take hereundermake a disbursement or distribution from the Escrowed Funds (A) to the Sellers' Representative or Sellers, the Escrow Agent may refrain from making such disbursement or distribution from the Escrowed Funds, without liability, if and to the extent that there are fees or expenses or any amounts then due to the Escrow Agent from the Sellers pursuant to Section 4(c) then due to the Escrow Agent from the Sellers' Representatives; or (B) to Buyer, the Escrow Agent may refrain from making such disbursement or distribution from the Escrowed Funds, without liability, if and to the extent that there are any amounts then due to the Escrow Agent from the Buyer pursuant to Section 4(c) hereof. Upon receipt of payment for such fees or expenses, the Escrow Agent shall be entitled promptly make such disbursements or distributions to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further questionBuyer.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Purchase Agreement (Ionics Inc)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) 5.01 The Escrow Agent shall be entitled to rely reasonable compensation for its services hereunder and shall be reimbursed for all reasonable expenses, disbursements and advances (including reasonable attorneys' fees and expenses) incurred or made by it in performance of its duties hereunder. Such reasonable compensation, disbursement, expenses and advances shall be borne equally by Allegro and the Stockholders' Representative and shall be paid promptly upon request by the Escrow Agent.
5.02 The Escrow Agent may resign and be discharged from its duties hereunder at any ordertime by giving notice of such resignation to Allegro and Stockholders' Representative specifying a date (not less than 30 days after the giving of such notice) when such resignation shall take effect. Promptly after such notice, judgmentAllegro and the Stockholders' Representative shall appoint a mutually agreeable successor Escrow Agent, certificationsuch successor Escrow Agent to become Escrow Agent hereunder upon the resignation date specified in such notice. If Allegro and the Stockholders' Representative are unable to agree upon a successor Escrow Agent with 30 days after such notice, demandthe Escrow Agent shall have the right to petition a court of competent jurisdiction to appoint a successor, and the Escrow Agent shall continue to serve until its successor accepts the escrow and receives the Escrowed Property.
5.03 The Escrow Agent undertakes to perform only such duties as are specifically set forth herein. The Escrow Agent acting or refraining from acting in good faith shall not be liable for any mistake of fact or error of judgment by it or for any acts or omissions by it of any kind unless caused by negligence or willful misconduct, and shall be entitled to rely, and shall be protected in doing so, upon (a) any written notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice have been signed or advice, accept receipt of presented by the proper party or execute any document, or make any statement in connection with the provisions hereof, has been parties duly authorized to do so.
, and (eb) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not (which may be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation 's own choosing, so long as such counsel is not counsel to the validity, value, genuineness Allegro or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow AgreementStockholders' Representative). The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means submitted to resolve disputes it hereunder and may shall be entitled in good faith to rely without any liability upon the contents thereof. The Escrow Agent has no responsibilities under, and shall be deemed to have no knowledge of, the provisions of the Reorganization Agreement.
(k) 5.04 Allegro and the Stockholders agree to indemnify the Escrow Agent and hold it harmless against any and all liabilities incurred by it hereunder as a consequence of such indemnifying party's action and the Allegro and the Stockholders further agree to indemnify the Escrow Agent and hold it harmless against any and all losses, costs, fees and expenses incurred by the Escrow Agent which are not a consequence of its actions or failure to act, except, in either case for liabilities incurred by the Escrow Agent resulting from its own gross negligence or willful misconduct. One-half of the amount of any such payment or indemnification shall be paid to the Escrow Agent by Allegro and the other half of the amount of any such payment or indemnification shall be paid by the Stockholders. The indemnification provided pursuant to this section shall survive the resignation of the Escrow Agent or the termination of this Escrow Agreement.
5.05 In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent becomes involved in good faith any litigation or dispute by reason hereof, it is in doubt as hereby authorized to what action it should take hereunder, deposit with the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order clerk of a court of competent jurisdiction directing delivery the Escrowed Property held by it pursuant hereto and, thereupon, shall stand fully relieved and discharged of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fundsany further duties hereunder. Also, in which the event the Escrow Agent shall disburse is threatened with litigation by reason hereof, it is hereby authorized to interplead all interested parties in any court of competent jurisdiction and to deposit with the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion clerk of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order the Escrowed Property held by it pursuant hereto and, thereupon, shall stand fully relieved and legal opinions without discharged of any further questionduties hereunder.
(l) Notwithstanding anything to the contrary contained herein, in 5.06 In the event of any claim, dispute between or litigation concerning the parties hereto as Reorganization Agreement or this Escrow Agreement, Blau, Kramer, Wactlar & ▇▇▇▇▇▇▇▇▇, P.C. shall nevertheless have the unqualified right to the facts of defaultrepresent Allegro, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as its officers and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may directors in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution respect of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent claim, dispute or litigation, notwithstanding that it is acting as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Escrow Agreement (Cinnamon Barry A)
Concerning the Escrow Agent. (a) Each of the Interested Parties acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or described herein, or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder that might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person or persons, and shall have no responsibility for making inquiry as to or determining the genuineness, accuracy or validity thereof, or of the authority of any person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Escrow Agent shall not be under liable to any duty person for any action taken or omitted to give the Escrow Funds held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all in the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent's gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for any indirect, punitive, special or consequential damage or loss (including lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any other agreement among such loss or damage and regardless of the parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, except for its own gross negligencesecurities intermediary or other sub-escrow agent employed by the Escrow Agent than any such book-entry depository, willful misconduct securities intermediary or breach of this Escrow Agreement, and, except with respect other sub-escrow agent has to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, except to the extent that such action or omission of any book-entry depository, securities intermediary or other parties hereto shall jointly and severally indemnify and hold harmless sub-escrow agent was caused by the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment own gross negligence or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or in breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon Notwithstanding any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act term in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant this Agreement to the advice of counsel with respect to any matter relating to this Escrow Agreement and contrary, in no instance shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms be required or obligated to distribute any Escrow Property (or take other action that may be called for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of hereunder to be taken by the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
sooner than two business days after (i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering it has received the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto applicable documents required under this Agreement in writingproper form, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing passage of the arbitrators applicable time period (or any third party contemplated herein both, as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability applicable under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(sthis Agreement), which consent shall not be unreasonably withheld or delayedas the case may be.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Escrowed Funds held by it hereunder any greater degree of care than it gives its own similar property and property. The Escrow Agent shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 and Section 3 of this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto with respect to the subject matter hereof except this Escrow Agreement. The Escrow Agent's duties are ministerial in nature. Except as expressly set forth herein, Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any financial or other liability in the performance of its duties hereunder.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, negligence or willful misconduct in taking any actions or breach of this Escrow Agreement, and, except failing to take any actions hereunder. Except with respect to claims based upon such gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, taxes (not including any taxes of the Escrow Agent measured by or imposed upon income, and not including any franchise or excise taxes), damages and expenses, including reasonable attorney's attorneys' fees and disbursements, arising out of and or in connection with this Escrow AgreementAgreement including the legal costs and expenses of defending itself against any claim or liability in connection with its performance hereunder. Without limiting the foregoing, the Escrow Agent shall in no event be liable (i) in connection with its investment or reinvestment of any Escrow Funds cash held by it hereunder in good faith, in accordance with the terms hereof, includingor as a result of any liquidation of any such investment prior to its maturity, without limitation, including any liability for any delays (not resulting from its gross negligencenegligence or willful misconduct) in the investment, willful misconduct reinvestment or breach liquidation of the Escrowed Funds, (ii) for any indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated, or (iii) for an amount in excess of the value of the Escrowed Funds, valued as of the date of the deposit, but only to the extent of direct money damages. Without limiting the joint and several nature of the obligation of Sellers' Representatives and Buyer vis-a-vis the Escrow Agent pursuant to this Section 4(c), as between themselves, the Sellers' Representatives and Buyer agree that they shall each share 50% of all losses, liabilities, claims, actions, taxes, damages and expenses for which the Escrow Agent is entitled to indemnification hereunder, which, in case of Buyer, shall be satisfied first from the Available Cash Amount. The terms of this Section 4(c) shall survive termination of this Escrow Agreement) in Agreement and the investment resignation or reinvestment removal of the Escrow Funds, or any loss of interest incident to any such delaysAgent.
(d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with reasonably acceptable to both Sellers' Representative and Buyer (Patterson, Belknap, Webb and Tyler, LLP being acceptable to both Sellers' Representative a▇▇ ▇uyer) ▇▇▇▇ respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent does not have any interest in any Escrowed Funds deposited hereunder but is serving as escrow holder agent only and has no interest in the Escrow Funds deposited hereunderhaving only possession thereof. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will Sellers' Representatives shall provide to the Escrow Agent concurrently with execution of this Escrow Agreement, appropriate W-9 or other certification forms for tax identification number certification certification, or W-8 or other nonresident alien certifications, with respect to each of the Sellers. This Section 4(f) and Section 4(c) Buyer shall survive notwithstanding any termination provide a duly completed W-9 to the Escrow Agent concurrently with execution of this Escrow Agreement or Agreement. As between Buyer and Sellers, Buyer agrees to pay the resignation of the Escrow Agenttaxes applicable to such income.
(g) The Escrow Agent makes no representation and shall not be responsible as to the validity, value, genuineness or the collectibility collectability of any security or other documents or instrument held by or delivered to it.
(h) Each of the monthly periodic statements identifying transactions hereunder to be provided by the Escrow Agent shall be deemed to be correct and final upon receipt thereof by the Buyer and the Sellers' Representatives unless the Buyer or the Sellers' Representatives notifies the Escrow Agent in writing to the contrary within thirty (30) business days of the date of such statement.
(i) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(ij) The Escrow Agent (Sellers' Representatives and any successor Escrow Agent) Buyer may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon remove the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with terminate this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of Agreement upon ten (i10) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its prior written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction signed by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.both
Appears in 1 contract
Sources: Escrow Agreement (Ionics Inc)
Concerning the Escrow Agent. (a) Each party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation the Asset Purchase Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder that might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting (or, if so requested, refraining from acting) upon and in accordance with any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrow Funds held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all in the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent's gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any other agreement among such loss or damage and regardless of the parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository or securities intermediary employed by the Escrow Agent than any such book-entry depository or securities intermediary has to the Escrow Agent, except for its to the extent that such action or omission of any book-entry depository or securities intermediary was caused by the Escrow Agent's own gross negligence, bad faith or willful misconduct or in breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving at least 30 days' prior written notice of such resignation to Buyer and the Company specifying a date upon which such resignation shall take effect; PROVIDED, HOWEVER, that the Escrow Agent shall continue to serve until its successor accepts the Escrow Fund. Upon receipt of such notice, a successor escrow agent shall be entitled appointed by Buyer and the Company, such successor escrow agent to rely upon any order, judgment, certification, demand, become the Escrow Agent hereunder on the resignation date specified in such notice, . If a written instrument or other writing of acceptance by a successor escrow agent shall not have been delivered to it hereunder without being required to determine the authenticity or Escrow Agent within 40 days after the correctness giving of any fact stated therein or such notice of resignation, the proprieties, validity or the service thereof. The resigning Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt at the expense of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to Buyer petition any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) jurisdiction for the appointment of a successor (including escrow agent. Buyer and the Company acting jointly, may at any time substitute a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its new escrow agent by giving 10 days' prior written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory thereof to the Escrow Agent to the effect that said court order is final then acting and nonappealable. The by Buyers' paying all fees and expenses of such Escrow Agent shall act on accrued as of such court order and legal opinions without further questiondate.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Escrow Agreement (Alloy Online Inc)
Concerning the Escrow Agent. (a) The TC and SPI acknowledge and agree that the Escrow Agent
(1) shall be obligated only for the performance of such acts as are specifically set forth in this Escrow Agreement;
(2) shall not be obligated to take any legal or other action hereunder which might in its judgment involve any expense or liability unless the Escrow Agent shall not have been furnished with acceptable indemnification;
(3) may rely on and shall be under protected in acting or refraining from acting in compliance with any duty written notice, instruction, statement, request or document furnished to give it hereunder that is signed by an authorized signatory (pursuant to authorized signature declarations attached as Annex 5(a)(3) to this ------------- Escrow Agreement) (provided that any instruction to release the Escrow Funds held Amount or any portion thereof to any person other than TC or SPI must be signed by it hereunder any greater degree of care than it gives its own similar property both TC and SPI), and shall not have no responsibility for determining the accuracy thereof. The authorized signature declaration for TC or SPI may be required changed by each party by notice to invest any funds held hereunder except as directed pursuant to the respective other party in accordance with Section 1 of this Escrow Agreement6(a).
(b) This Escrow Agreement expressly sets forth all the duties of Neither the Escrow Agent with respect to nor any and all matters pertinent hereto. No implied duties or obligations of its employees shall be read into liable for any action taken or omitted to be taken hereunder except in the case of gross negligence or willful misconduct. TC and SPI, jointly and severally, covenant and agree to indemnify the Escrow Agent and hold it harmless without limitation from and against any loss, liability or expense of any nature incurred by the Escrow Agent arising out of or in connection with this Escrow Agreement or with the administration of its duties hereunder, including legal fees and other costs and expenses of defending or preparing to defend against any claim or liability arising under this Escrow Agreement, unless such loss, liability or expense shall be caused by the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.'s gross negligence or willful
(c) The Escrow Agent shall not be liableentitled to compensation in the amount of DEM 10,000 (in words: ten thousand German Marks) plus value added tax at the statutory rate, except if applicable, for all its own gross negligenceservices and expenses hereunder. TC and SPI shall each bear one half of such compensation. The compensation shall be due within 10 days after of the invoice by TC and SPI respectively, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall but in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with before the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delaysClosing.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by each of Assignor, Assignee and FGC that:
(ai) The Escrow Agent shall not be under any duty to give the Escrow Funds Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of in this Escrow Agreement.
(bii) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(ciii) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of any representations, warranties or covenants contained in this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages damages, and expenses, including reasonable attorney's attorneys' fees and disbursements, arising out of of, and in connection with with, this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds cash held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct) in the investment or reinvestment of the Escrow Escrowed Funds, or any loss of interest incident to any such delays.
(div) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument instrument, or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume assume, if in good faith, that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(ev) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(fvi) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder, but is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunderonly. Any payments of income from this the Escrow Agreement Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(fparagraph (vi) and Section 4(cparagraph (iii) of this Article III shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(gvii) The Escrow Agent makes no representation as to the validity, value, genuineness genuineness, or the collectibility of any security or other documents or instrument held by by, or delivered to to, it.
(hviii) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(iix) The Escrow Agent (and any successor Escrow Agentescrow agent) may at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by Assignor and FGC or at any time may resign as by giving written notice to such by delivering effect to Assignor and FGC. Upon any such termination or resignation, the Escrow Funds Agent shall deliver the Escrowed Property to any successor Escrow Agent escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdictionjurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent will shall take effect on the earlier of (iA) the appointment of a successor (including a court of competent jurisdiction) or (iiB) the day which that is 30 days after the date of delivery delivery: (1) to the Escrow Agent of its written the other parties' notice of resignation termination or (2) to the other parties heretohereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor Escrow Agentescrow agent, the Escrow Agent's sole responsibility after that time shall be to safekeep keep the Escrow Funds Escrowed Property safe until receipt of a designation of successor Escrow Agent escrow agent or a joint written disposition instruction by the other parties hereto or a final an enforceable order of a court of competent jurisdiction.
(jx) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kxi) In the event of any disagreement among or between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow FundsEscrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds Escrowed Property until the Escrow Agent shall have received (iA) a final nonappealable and non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Funds Escrowed Property or (iiB) a written agreement executed by the other parties hereto directing delivery of the Escrow FundsEscrowed Property, in which event the Escrow Agent shall disburse the Escrow Funds Escrowed Property in accordance with such order or agreement. Any court order referred to in clause (iA) above shall be accompanied by a legal opinion of by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealablenon-appealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(lxii) Notwithstanding anything As consideration for its agreement to the contrary contained herein, in the event of any dispute between the parties hereto act as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it herein described, FGC shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent fees determined in accordance with the terms set forth on Exhibit A hereto (and made a part of this Escrow Agreement as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunderif herein set forth). In addition, FGC and Assignor agree to reimburse the Company agrees to pay Escrow Agent for all reasonable expenses, disbursements disbursements, and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses expenses, and disbursements of its counsel)) and to share equally the costs thereof.
(nxiii) No printed publicly distributed material or other matter in any language (including, without limitation, prospectuses, notices, reports notices and promotional materialsreports) which mentions the Escrow Agent's name or the rights, powers powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedthereto.
Appears in 1 contract
Concerning the Escrow Agent. To induce the EscEsc Agent to act hereunder, it is further agreed by the Purchaser and the Seller that:
(ai) The Escrow Agent shall not be under any duty to give the Escrow Funds Escrowed Shares held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreementproperty.
(bii) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto hereto, except this Agreement. Except for amendments to this Agreement and except for instructions given to the Escrow Agent by the other party hereto relating to the escrow deposit under this Agreement, the Escrow Agent shall not be obligated to recognize any agreement between any or all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
(ciii) The Escrow Agent shall not be liable, except for its own gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct, and, except with respect to claims based upon such gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages damages, and expenses, including reasonable attorney's attorneys' fees and disbursements, arising out of of, and in connection with with, this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(div) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument instrument, or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume assume, if in good faith, that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(ev) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(fvi) The Escrow Agent does not have any interest in the Escrowed Shares deposited hereunder, but is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunderonly. Any payments of income income, if any, from this the Escrow Agreement Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(fparagraph (vi) and Section 4(cparagraph (iii) of this Article V shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(gvii) The Escrow Agent makes no representation as to the validity, value, genuineness genuineness, or the collectibility of any security or other documents or instrument held by by, or delivered to to, it.
(hviii) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(iix) The Escrow Agent (and any successor Escrow Agentescrow agent) may at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Purchaser and the Seller or at any time may resign as by giving written notice to such by delivering effect to the Purchaser and the Seller. Upon any such termination or resignation, the Escrow Funds Agent shall deliver the Escrowed Shares to any successor Escrow Agent escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdictionjurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent will shall take effect on the earlier of (iA) the appointment of a successor (including a court of competent jurisdiction) or (iiB) the day which that is 30 days after the date of delivery delivery: (1) to the Escrow Agent of its written the other parties' notice of resignation termination or (2) to the other parties heretohereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor Escrow Agentescrow agent, the Escrow Agent's sole responsibility after that time shall be to safekeep keep the Escrow Funds Escrowed Shares safe until receipt of a designation of successor Escrow Agent escrow agent or a joint written disposition instruction by the other parties hereto or a final an enforceable order of a court of competent jurisdiction.
(jx) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kxi) In the event of any disagreement among or between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, Escrowed Shares or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds Escrowed Shares until the Escrow Agent shall have received (iA) a final nonappealable and non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Funds Escrowed Shares or (iiB) a written agreement executed by the other parties hereto directing delivery of the Escrow FundsEscrowed Shares, in which event the Escrow Agent shall disburse release and distribute the Escrow Funds Escrowed Shares in accordance with such order or agreement. Any court order referred to in clause (iA) above shall be accompanied by a legal opinion of by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealablenon-appealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(lxii) Notwithstanding anything As consideration for its agreement to the contrary contained herein, in the event of any dispute between the parties hereto act as to the facts of defaultEscrow Agent as herein described, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, jointly and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so depositedseverally, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees agree to pay the Escrow Agent fees determined in accordance with the terms set forth on Exhibit A hereto (and made a part of this Escrow Agreement as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunderif herein set forth). In addition, the Company agrees other parties hereto, jointly and severally, agree to pay reimburse the Escrow Agent for all reasonable expenses, disbursements disbursements, and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses expenses, and disbursements of its counsel).
(nxiii) The other parties hereto irrevocably (A) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of, or relating to, this Agreement, (B) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court, and (C) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(xiv) No printed publicly distributed material or other matter in any language (including, without limitation, prospectusesnotices and reports, notices, reports and promotional materialsbut excluding the Asset Purchase Agreement) which mentions the Escrow Agent's name or the rights, powers powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent thereto.
(xv) The Escrow Agent shall have no duties or responsibilities except those expressly set forth herein. The Escrow Agent may disregard and shall not be unreasonably withheld required to refer to, or delayedexamine, any notice, instruction, instrument or document except as specifically provided herein. The Escrow Agent may rely upon, and shall be protected in acting or refraining from acting upon, any written notice believed by it to be genuine and furnished to him hereunder. The Escrow Agent shall not be liable for any mistake of fact or of law or any error of judgment, or for any act or any omission, except as a result of the Escrow Agent's own willful misconduct or gross negligence.
(xvi) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder, or shall receive any notice, claim, advice, direction, or other document from any other party with respect to the Escrow which, in the Escrow Agent's opinion, is in conflict with any of the provisions of this agreement, or is advised that a dispute has arisen between the Purchaser, Seller or HEcom, or any of them, whether as to ownership or right of possession of the Escrow or any part thereof or otherwise (or as to the delivery, non-delivery, or content of any notice, advice, direction, or other document), the Escrow Agent shall be entitled, without liability to anyone, to refrain from taking any action other than to use the Escrow Agent's reasonable efforts to keep the Escrow safe until the Escrow Agent shall be directed otherwise in writing by all of the Purchaser, Seller or HEcom, or by final order, decree or judgment of a court of competent jurisdiction and the time for appeal of such order has expired and no appeal has been perfected (or, if an appeal has been perfected and the time for further appeal has expired), but the Escrow Agent is under no duty to institute or defend any proceeding.
(xvii) Distribution of the Escrowed Shares pursuant to this Agreement by the Escrow Agent shall operate to divest all right, title, interest, claim and demand, either at law or in equity, of any party to this Agreement in and to the Escrowed Shares and the Escrow, and shall be a perpetual bar both at law and in equity as against the Escrow Agent and the Purchaser, HEcom and the Seller. The Escrow Agent's responsibilities and liabilities hereunder will terminate upon transfer by Escrow Agent of all the Escrow under this Agreement.
(xviii) Purchaser, Seller and HEcom all agree to indemnify and hold harmless the Escrow Agent from and against any and all losses, expenses (including, without limitation, reasonable fees and disbursements of legal counsel to the Escrow Agent), assessments, liabilities, claims, damages, actions, or other charges incurred by or assessed against the Escrow Agent for anything done or omitted by the Escrow Agent in the performance of its duties hereunder, except as a result of the Escrow Agent's own willful misconduct or gross negligence. The agreements continued in this Section V (xviii) shall survive any termination of this Escrow Agreement or the Escrow Agent's duties hereunder.
Appears in 1 contract
Sources: Escrow Agreement (Claimsnet Com Inc)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty undertakes to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property perform only such duties as are expressly set forth herein and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(cb) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any writing or instrument or signature reasonably believed by it which it, in good faith, believes to be genuine genuine, may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and may assume that any person purporting to give notice any writing, notice, advice or advice, accept receipt of or execute any document, or make any statement instructions in connection with the provisions hereof, hereof has been duly authorized to do so. The Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner, and execution, or validity of any instrument deposited in this escrow, nor as to the identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the safekeeping of such certificates, monies, instruments, or other documents received by it as such escrow Pledgee, and for the disposition of the same in accordance with the written instruments accepted by it in the escrow.
(c) Pledgee and Pledgor hereby agree, jointly and severally, to defend and indemnify the Escrow Agent and hold it harmless from any and all claims, liabilities, losses, actions, suits, or proceedings at law or in equity, or any other expenses, fees, or charges of any character or nature which it may incur or with which it may be threatened by reason of its acting as Escrow Agent under this Agreement, except where arising out of willful misconduct or gross negligence; and in connection therewith, to indemnify the Escrow Agent against any and all expenses, including attorneys' fees and costs of defending any action, suit, or proceeding or resisting any claim. The Escrow Agent shall be vested with a lien on all property deposited hereunder, for indemnification of attorneys' fees and court costs regarding any suit, proceeding or otherwise, or any other expenses, fees, or charges of any character or nature, which may be incurred by the Escrow Agent by reason of disputes arising between the makers of this escrow as to the correct interpretation of this Agreement and instructions given to the Escrow Agent hereunder, or otherwise, with the right of the Escrow Agent, regardless of the instructions aforesaid, to hold said property until and unless said additional expenses, fees, and charges shall be fully paid. Any fees and costs charged by the Escrow Agent for serving hereunder shall be paid by the Borrower, which fees and costs are specified in the Standby Equity Distribution Agreement.
(d) If any two parties shall be in disagreement about the interpretation of this Agreement, or about the rights and obligations, or the propriety of any action contemplated by the Escrow Agent hereunder, the Escrow Agent may, at its sole discretion deposit the Pledged Materials with the Clerk of the Circuit Court of Hudson County, ▇▇▇ ▇ersey, and, upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully cease and terminate. The Escrow Agent shall be indemnified by the Borrower and Pledgee for all costs, including reasonable attorneys' fees in connection with the aforesaid proceeding, and shall be fully protected in suspending all or a part of its activities under this Agreement until a final decision or other settlement in the proceeding is received.
(e) The Escrow Agent may act pursuant to consult with counsel of its own choice (and the advice costs of such counsel with respect to any matter relating to this Escrow Agreement shall be paid by Borrower and Pledgee) and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The Escrow Agent shall otherwise not be liable for any action taken mistakes of fact or omitted in accordance with such adviceerror of judgment, except or for any action constituting gross negligenceactions or omissions of any kind, unless caused by its willful misconduct or a breach of this Escrow Agreementgross negligence.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(fmay resign upon thirty (30) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as days' written notice to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom parties in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any this Agreement. If a successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with is not appointed within this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of thirty (i30) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderperiod, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of may petition a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) to name a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further questionsuccessor.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be have any liability to any of the parties to this Agreement or to any third party arising out of its services as Escrow Agent under any duty to give this Agreement, except for damages directly resulting from the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow AgreementAgent’s gross negligence or willful misconduct.
(b) This Escrow Agreement expressly sets forth all the duties Upon any delivery or deposit with a court or successor escrow agent of the Escrow Agent Amount and related stock powers in accordance with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against Agreement, the Escrow Agent. The Escrow Agent shall not be bound by the provisions of fully and forever released and discharged from any other agreement among the parties hereto except liability for serving as Escrow Agent and from any further obligation under this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except entitled to reasonable compensation from the Company for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against all services rendered by it hereunder. The Company shall pay the Escrow Agent’s fee of $7,500 on the Closing Date. If such fee is not paid on the Closing Date, Escrow Agent is not required to take any action hereunder. The Escrow Agent shall also be entitled to reimbursement from the Company for all expenses paid or incurred by it in the administration of its duties hereunder including, but not limited to, all counsel, advisors’ and agents’ fees and disbursements and all taxes or other parties hereto shall jointly and severally indemnify and hold harmless governmental charges, charges in connection with the Escrow Agent (and any successor Escrow Agent) from and against any and all lossesTrading Account, liabilitieswire transfer charges, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of brokerage commissions and in connection with this Escrow Agreement. Without limiting and filings made with the foregoingSEC.
(d) The Company, the Borrower and the Lender jointly and severally shall indemnify the Escrow Agent shall in no event be liable and hold it harmless against any loss, liability, damage or expense (including reasonable attorneys’ fees) that the Escrow Agent may incur as a result of acting as escrow agent under this Agreement, except for any loss, liability, damage or expense arising from its own gross negligence or willful misconduct. For this purpose, the term “attorneys’ fees” includes out-of-pocket fees payable to any counsel retained by the Escrow Agent in connection with its investment or reinvestment of any Escrow Funds held by it hereunder services under this Agreement (other than fees incurred in good faith, in accordance connection with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach drafting and negotiation of this Escrow Agreement) in the investment or reinvestment of and, with respect to any matter arising under this Agreement as to which the Escrow FundsAgent performs legal services (other than fees incurred in connection with the drafting and negotiation of this Agreement), or any loss of interest incident to any such delaysits standard hourly rates and charges then in effect.
(de) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder under this Agreement without being required to determine the authenticity of, or the correctness of any fact stated therein in, that document and irrespective of any facts the Escrow Agent may know or the proprieties, validity or the service thereofbe deemed to know in any other capacity. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give any notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, this Agreement has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has shall have no interest duties or responsibilities except those expressly set forth in this Agreement. The Escrow Agent shall not have any obligations arising out of or be bound by the provisions of any other agreement, written or oral, including, but not limited to, the Purchase Agreement.
(g) All of the Escrow Funds deposited hereunder. Any payments Agent’s rights of income from indemnification provided for in this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The , its replacement by a successor Escrow Agent makes no representation as to Agent, its delivery or deposit of the validityEscrow Amount in accordance with this Agreement, valuethe termination of this Agreement, genuineness or and any other event that occurs after the collectibility of any security or other documents or instrument held by or delivered to itEffective Date.
(h) The If any dispute arises in connection with this Agreement, the Escrow Agent shall not be called upon to advise may at any party as to time commence an action in the wisdom in selling or retaining or taking or refraining from any action with respect to any securities nature of interpleader or other property deposited hereunderlegal proceedings and may deposit the Escrow Amount with the clerk of the court.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such shall have no responsibility with respect to the sufficiency of the arrangements contemplated by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation Agreement to accomplish the intentions of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdictionparties.
(j) The Escrow Agent shall have no responsibility not be liable for any loss resulting from the contents failure of any writing Broker or of a FDIC insured banking institution holding the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereofBorrower’s Liquidation Proceeds.
(k) In the event Escrow Agent may generally engage in any kind of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection business with the Company, the Borrower or the Lender or any subsidiary or affiliate thereof as if it had not entered into this Agreement. Escrow FundsAgent and its affiliates and their officers, directors, employees, and agents (including legal counsel) may now or hereafter be engaged in one or more transactions with either the Company, the Borrower or Lender, act as trustee, agent or representative of either the Company, the Lender or Borrower, or otherwise be engaged in other transactions with such parties (collectively, the event that “Other Activities”). Without limiting the forgoing, Escrow Agent in good faith is in doubt as and its affiliates and their officers, directors, employees, and agents (including legal counsel) shall not be responsible to what action it should take hereunderaccount to the Company, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds Lender or (ii) a written agreement executed by the Borrower for such other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further questionactivities.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall not be issued by the other parties hereto or on such parties' behalf required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedAgent.
Appears in 1 contract
Sources: Escrow Agreement (Vector Intersect Security Acquisition Corp.)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty entitled to give its customary fee for the performance of services by the Escrow Funds held Agent hereunder for each year or portion thereof that any portion of the Escrow Fund remains in escrow and shall be reimbursed for reasonable costs and expenses incurred by it hereunder in connection with the performance of such services .. A schedule of the Escrow Agent’s fees is attached hereto as Exhibit B. The Escrow Agent shall render statements to Buyer and the Stockholders’ Representative setting forth in detail the Escrow Agent’s Compensation and the basis upon which the Escrow Agent’s Compensation was computed. In addition, the Escrow Agent shall be entitled to reimbursement for costs and expenses in the event that the Escrow Agent renders any greater degree of care than it gives its own similar property and shall material service not be required to invest any funds held hereunder except as directed pursuant to Section 1 of contemplated in this Escrow Agreement, or if Escrow Agent is made a party to any litigation pertaining to this Escrow Agreement (such fees, costs and expenses referred to in the previous four sentences are hereinafter referred to as the “Escrow Agent’s Compensation”). The Escrow Agent’s Compensation shall be paid from the Escrow Fund after written notice from the Escrow Agent to Buyer and the Stockholders’ Representative. To the extent that, at the Escrow End Date, accumulated income and gains on the Escrow Fund (without, for the avoidance of doubt, deduction for any distributions pursuant to paragraph 5(a) or 5(b) of this Agreement) less the amount of any disbursements pursuant to paragraph 5(c), is less than the accumulated Escrow Agent’s Compensation (the “Compensation Deficiency”), the Buyer shall assume and pay to the Escrow Agent one-half of the Compensation Deficiency and the Stockholders, through the Stockholders’ Representative, shall assume and pay, solely through deduction from the Escrow Fund, one-half of the Compensation Deficiency.
(b) This Escrow Agreement expressly sets forth all the duties Stockholders’ Representative, on behalf of the Escrow Agent with respect to any Stockholders, and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall Buyer will jointly and severally indemnify and hold harmless the Escrow Agent (and each director, employee, attorney, agent and affiliate of the Escrow Agent for, and hold it harmless against, any successor Escrow Agent) from and against any and all lossesloss, liabilitiesliability or expense incurred, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, unless caused by or arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in bad faith on the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation part of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered breach by the Escrow Agent hereunder. In additionof the terms of this Agreement, the Company agrees to pay all reasonable expenses, disbursements arising out of or in connection with its entering into this Agreement and advances incurred or made by the Escrow Agent in performance of carrying out its duties hereunder (hereunder, including reasonable fees, the costs and expenses and disbursements of its counsel).
(n) No printed or other matter in defending itself against any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.claim of
Appears in 1 contract
Sources: Escrow Agreement (SoftBrands, Inc.)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by each of the Seller and FGC that:
(ai) The Escrow Agent shall not be under any duty to give the Escrow Funds Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(bii) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(ciii) The Escrow Agent shall not be liable, except for its own gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct, and, except with respect to claims based upon such gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.shall
(div) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument instrument, or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume assume, if in good faith, that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(ev) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(fvi) The Escrow Agent does not have any interest in the Escrowed Funds deposited hereunder, but is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunderonly. Any payments of income from this the Escrow Agreement Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(gvii) The Escrow Agent makes no representation as to the validity, value, genuineness genuineness, or the collectibility of any security or other documents or instrument held by by, or delivered to to, it.
(hviii) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(iix) The Escrow Agent (and any successor Escrow Agentescrow agent) may at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by FGC and the Seller or at any time may resign as by giving written notice to such by delivering effect to FGC and the Seller. Upon any such termination or resignation, the Escrow Funds Agent shall deliver the Escrowed Property to any successor Escrow Agent escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdictionjurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent will shall take effect on the earlier of (iA) the appointment of a successor (including a court of competent jurisdiction) or (iiB) the day which that is 30 days after the date of delivery delivery: (1) to the Escrow Agent of its written the other parties' notice of resignation termination or (2) to the other parties heretohereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor Escrow Agentescrow agent, the Escrow Agent's sole responsibility after that time shall be to safekeep keep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.Escrowed
(jx) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kxi) In the event of any disagreement among or between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow FundsEscrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds Escrowed Property until the Escrow Agent shall have received (iA) a final nonappealable and non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Funds Escrowed Property or (iiB) a written agreement executed by the other parties hereto directing delivery of the Escrow FundsEscrowed Property, in which event the Escrow Agent shall disburse the Escrow Funds Escrowed Property in accordance with such order or agreement. Any court order referred to in clause (iA) above shall be accompanied by a legal opinion of by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealablenon-appealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(lxii) Notwithstanding anything As consideration for its agreement to act as Escrow Agent as herein described, FGC, on the contrary contained hereinone hand, in and the event of any dispute between Seller, on the parties hereto as other hand, agrees to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, share equally the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may fees determined in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands accordance with the then Clerk, or acting Clerk, terms set forth on Exhibit A hereto (and made a part of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof this Escrow Agreement as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunderif herein set forth). In addition, FGC and the Company agrees Seller agree to pay reimburse the Escrow Agent for all reasonable expenses, disbursements disbursements, and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).the
(nxiii) No printed publicly distributed material or other matter in any language (including, without limitation, prospectuses, notices, reports notices and promotional materialsreports) which mentions the Escrow Agent's name or the rights, powers powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedthereto.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderreasonable compensation, judgmentas may be set forth in a separate letter from the Escrow Agent for his services hereunder and shall be reimbursed for all reasonable expenses, certificationdisbursements and advances (including reasonable attorneys' fees actually incurred by the Escrow Agent in connection with the use of outside attorneys) (collectively, demand, notice, instrument the "Escrow AGENT Fees") incurred or other writing delivered to it made by him in performance of his duties hereunder without being required to determine on or after the authenticity or date hereof. All of the correctness of any fact stated therein or the proprieties, validity or the service thereofEscrow Agent Fees shall be paid by Purchaser. The Escrow Agent may act resign and be discharged from its duties hereunder at any time by giving notice of such resignation to the Purchaser and Vestin specifying a date (not less than 30 DAYS after the giving of such notice) when such resignation shall take effect, provided, however, that the Escrow Agent shall continue to serve until his successor accepts the escrow and receives the funds deposited with the Escrow Agent. Promptly after such notice, a successor escrow agent shall be appointed by mutual agreement of the Purchaser and Vestin, such successor escrow agent to become Escrow Agent hereunder upon the later of the resignation date specified in reliance such notice or the acceptance of the escrow and the receipt of the escrowed funds by the successor Escrow Agent. The Purchaser and Vestin may agree at any time to substitute a new escrow agent by giving notice thereof to the Escrow Agent then acting.
(b) The Escrow Agent undertakes to perform only such duties as are specifically set forth herein. The Escrow Agent acting or refraining from acting in good faith shall not be liable for any mistake of fact or error of judgment by him or for any acts or omissions by him of any kind unless caused by willful misconduct or gross negligence, and shall be entitled to rely and shall be protected in doing so, upon any written notice, instrument or signature reasonably believed by it him to be genuine and may assume that any person purporting to give notice have been signed and presented by the proper party or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been parties duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means submitted to resolve disputes him hereunder and may shall be entitled in good faith reasonably to rely without any liability upon the contents thereof.
(kc) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that Purchaser agrees to indemnify the Escrow Agent in good faith is in doubt as to what action it should take and hold him harmless against any and all liabilities incurred by him hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel except for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered liabilities incurred by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred resulting from his own willful misconduct or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel)gross negligence.
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty Company agrees to give pay the Escrow Funds held Agent’s fees and expenses for all services rendered by it hereunder any greater degree of care than and the Escrow Agent’s reasonable attorneys’ fees and expenses incurred by it gives in connection with carrying out its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreementduties hereunder.
(b) This The Company agrees to indemnify the Escrow Agent for, and to hold the Escrow Agent (which for purposes of this Section 8(b) shall include its officers, directors, employees and agents) harmless from and against any and all claims, losses, liabilities, costs, disbursements, damages or expenses (including reasonable attorneys’ fees and expenses and court costs) (collectively, “Losses”), arising from or in connection with or related to this Agreement expressly sets forth all or being the duties Escrow Agent hereunder, provided, however, that nothing contained herein shall require the Escrow Agent to be indemnified for Losses caused by its gross negligence, willful misconduct or bad faith. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent or the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Escrow Agent or the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action. The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into the termination of this Escrow Agreement against the Escrow AgentAgreement. The Escrow Agent shall not have, and hereby waives, any lien, security interest, right of set-off, or other encumbrance with respect to the Escrow Account or any money, instruments, investment property, or other property on deposit in, credited to, or carried in the Escrow Account, to secure its rights to be bound by paid any amounts owing under Sections 8(a) or 8(b), and the provisions Escrow Agent agrees that it shall look solely to the Company, and not to the Escrow Collateral, for the payment of any other agreement among the parties hereto such amounts (except this Escrow Agreementas set forth in Section 6(c)).
(c) The Escrow Agent shall not be liableprepare and deliver to the Company, except for its own gross negligencepromptly after the end of the month in which this Agreement is terminated, willful misconduct or breach of this Escrow Agreement, and, except a written account describing all transactions with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delaysAccount.
(d) The duties and responsibilities of the Escrow Agent hereunder shall be entitled to rely upon any orderdetermined solely by the express provisions of this Agreement, judgment, certification, demand, notice, instrument and no other or other writing delivered to it hereunder without being required to determine the authenticity further duties or the correctness of any fact stated therein or the proprieties, validity or the service thereofresponsibilities shall be implied. The Escrow Agent shall not be subject to, nor required to comply with, nor required to inquire as to the performance of any obligation under, any other agreement between or among the Company and the Trustee or to which either of them is a party, even though reference thereto may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any documentmade herein, or make to comply with any statement direction or instruction (other than those contained herein or delivered in connection accordance with this Agreement) from the provisions hereofCompany or the Trustee or any entity acting on its behalf. The Escrow Agent shall not be required to, has been duly authorized to do soand shall not, expend or risk any of its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.
(e) The Escrow Agent may act upon any instrument or other writing provided by an Authorized Officer of the Company believed by it in good faith to be genuine, and to be signed or presented by the proper person, and shall not be liable in connection with the performance by it of its duties pursuant to the advice provisions of counsel this Agreement, except for its own willful misconduct, bad faith or gross negligence. The Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such instrument or other writing. The Escrow Agent shall have no duty to solicit any payments which may be due hereunder.
(f) Any corporation or other entity into which the Escrow Agent in its individual capacity may be merged or converted or with respect which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Escrow Agent in its individual capacity shall be a party, or any matter relating corporation or other entity to which substantially all the corporate trust business of the Escrow Agent in its individual capacity may be transferred, shall be the Escrow Agent under this Agreement without further act.
(g) The Escrow Agreement and Agent shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of gross negligence, bad faith or willful misconduct on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
relying upon (f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then fully protected in force with respect to United States taxes. The relying upon) any instruction, notice, demand, certificate or document from the Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation Trustee, any entity acting on behalf of the Company or the Trustee or any other person or entity which it reasonably believes to be genuine, (ii) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians selected by it with due care, or (iii) for an amount in excess of the value of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to itCollateral.
(h) The Escrow Agent shall not be called upon to advise responsible in any party as to respect for the wisdom in selling form, execution, validity, value or retaining genuineness of documents or taking or refraining from any action with respect to any securities or other property deposited hereunder, or for any description therein, or for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such document, security or endorsement.
(i) The Escrow Agent (and any successor Escrow Agent) may consult with legal counsel at any time resign the expense of the Company as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writingmatter relating to this Agreement, or to any court of competent jurisdiction, whereupon and the Escrow Agent shall be discharged of and not incur any liability in acting in good faith in accordance with any advice from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdictionsuch counsel.
(j) The Escrow Agent shall have no responsibility not be liable for the contents any error of any writing judgment made in good faith by a responsible officer of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon Escrow Agent, unless it shall be proved that the contents thereofEscrow Agent was negligent in ascertaining the pertinent facts.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall not incur any liability for not performing any act on such court order and legal opinions without further questionor fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God or war or terrorism, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility).
(l) Notwithstanding anything The Escrow Agent shall exercise the same degree of care in the custody and preservation of the Escrow Collateral in its possession as it exercises toward its own similar property and shall not be held to any higher standard of care under this Agreement, nor be deemed to owe any fiduciary duty to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of defaultCompany, the validity or meaning of these instructions Trustee, the Bondholders or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) aboveparty.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Escrow Deposit and Disbursement Agreement (PG&E Corp)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as may be directed pursuant to Section 1 in a writing executed by each of this Escrow Agreementthe Company and the Placement Agent. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liableliable under this Escrow Agreement, except for its own gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct, and, except with respect to claims based upon such gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto Company shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds cash held by it hereunder in good faith, in accordance with the terms hereof, including, including without limitation, limitation any liability for any delays (not resulting from its gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct) in the investment or reinvestment of the Escrow FundsEscrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder by the Company or the Placement Agent without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume assume, if in good faith, that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so. The names and signatures of each individual authorized to act on behalf of the Company and the Placement Agent, respectively, are set forth on Schedule II attached hereto.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent does not have, for tax reporting purposes, any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has no only. The parties hereto agree that, for tax reporting purposes, all interest or other income earned from the investment of the Escrowed Property or any portion thereof in any tax year: (i) to the extent such interest or other income is distributed by the Escrow Funds deposited hereunder. Agent to any person or entity pursuant to the terms of this Escrow Agreement during such tax year, shall be reported as allocated to such person or entity, and (ii) otherwise shall be reported as allocated to the subscribers, in proportion to their respective Subscription Payment as set forth on EXHIBIT A hereto.
(g) Any payments of income from this the Escrow Agreement Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax identification I.D., number certification certification, or nonresident non-resident alien certifications. .
(h) This Section 4(fparagraph (h) and paragraph (c) of this Section 4(c) 6 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(gi) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents document or instrument held by or delivered to it.
(hj) The Escrow Agent shall not be called upon to advise any party as to the wisdom in of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(ik) The Escrow Agent (and any successor Escrow Agentescrow agent) may at any time resign as may be discharged from its duties and obligations hereunder by the delivery to it of written notice of termination signed by both the Company and the Placement Agent or at any time may upon 60 days'written notice to such by delivering effect to the Company and the Placement Agent not less than 60 days' prior to the date when such resignation shall take effect, unless a successor escrow agent is earlier appointed. Upon the effectiveness of any such termination or resignation, the Escrow Funds Agent shall promptly deliver the Escrowed Property to any successor Escrow Agent escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdictionjurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow AgreementAgreement except to the extent resulting from its gross negligence or willful misconduct. The termination or resignation of the Escrow Agent will shall take effect on the earlier of (i) the appointment of a successor escrow agent (including a court of competent jurisdiction) or (ii) the day which is that is: (A) 30 days after the date of delivery to the Escrow Agent of its written the other parties' notice of resignation termination or (B) 60 days after the date of delivery to the other parties heretohereto of the Escrow Agent's written notice of resignation. If at that the time of any termination or resignation the Escrow Agent has not received a designation of a successor Escrow Agentescrow agent, the Escrow Agent's sole responsibility after that time shall be Agent may apply to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdictionjurisdiction for appointment of a successor Escrow Agent and shall, until such time as a successor Escrow Agent is appointed, maintain the Escrowed Property pursuant to the terms and conditions of this Escrow Agreement.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kl) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Offered Securities resulting in adverse claims or demands being made in connection with the Escrow FundsEscrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to refrain from taking any action and retain the Escrow Funds Escrowed Property until the Escrow Agent shall have received (i) a final nonappealable and non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Funds Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the affected subscribers, if any, directing delivery of the Escrow FundsEscrowed Property, in which event the Escrow Agent shall disburse the Escrow Funds Escrowed Property in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The As consideration for the performance by the Escrow Agent of its duties herein described, the Company agrees to pay the Escrow Agent fees determined in accordance with the terms set forth on EXHIBIT E hereto (made a part of this Escrow Agreement as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunderif herein set forth). In addition, the Company agrees to pay reimburse the Escrow Agent for all reasonable expensesexpenses of third parties, disbursements and advances directly incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, fees and expenses and disbursements of its outside counsel).
(n) The other parties hereto irrevocably: (i) submit to the jurisdiction of any New York State or federal court sitting in New York in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. Each party agrees to accept service of any summons, complaint or other initial pleading made in the manner provided for the giving of notices in Section 5 hereof, provided that nothing in this Section 6(n) shall affect the right of any party to serve such summons, complaint or other initial pleading in any other manner permitted by law.
(o) No printed or other matter in any language (including, without limitation, prospectusesthe Registration Statement, notices, reports and promotional materialsmaterial) which mentions the Escrow Agent's name or the rights, powers powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), thereto (which consent shall not be unreasonably withheld withheld, conditioned or delayed). The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement (including all exhibits thereto) and the Placement Agency Agreement and in the filings made by the Company under the Securities Exchange Act of 1934, as amended including the filing of this Agreement as an exhibit thereto.
(p) Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Escrow Agent has been advised of the likelihood of such loss or damage or regardless of the form of action, other than loss or damage resulting from the Escrow Agent's gross negligence or willful misconduct.
(q) In the event funds transfer instructions are given (other than in writing at the time of execution of this Escrow Agreement), whether in writing, by facsimile transmission or otherwise, the Escrow Agent is
Appears in 1 contract
Sources: Escrow Agreement (uWink, Inc.)
Concerning the Escrow Agent. (a) The Escrow Agent shall will have no duties or obligations other than those specifically set forth in or contemplated by this Escrow Agreement and the Escrow Agent will not be under responsible for any duty of the agreements referred to give herein, including the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Merger Agreement.
(b) This The Escrow Agreement expressly sets forth all the duties of Agent will be fully protected in acting on and relying upon any written notice, direction, request, waiver, consent, receipt or other paper or document which the Escrow Agent with respect in good faith believes to any and all matters pertinent hereto. No implied duties have been signed or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound presented by the provisions proper party or parties, but will not act on oral instructions alone of any other agreement among the parties hereto except this Escrow Agreementparty.
(c) The Escrow Agent shall will not be liableobligated to take any legal action hereunder which might in its judgment involve any expense or liability, unless it will have been furnished with reasonable indemnity.
(d) The Escrow Agent and its directors, officers or employees will not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Escrow Agreement, except for its own gross negligence, willful misconduct or breach act of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good bad faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to seek the advice of counsel with respect legal counsel, including in- house counsel, in the event of any dispute or question as to the construction of any matter relating to of the provisions of this Escrow Agreement or its duties hereunder, and shall not it will incur no liability and will be liable for fully protected in respect of any action taken taken, omitted or omitted suffered by it in good faith in accordance with the opinion of such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreementcounsel.
(f) The Escrow Agent is serving will be compensated on the basis of its regular fees as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall set forth on Exhibit 1, which may be subject to withholding regulations then change hereafter on an annual --------- basis, plus reasonable out-of-pocket expenses, including the reasonable fees and costs of attorneys or agents which it may find necessary to engage in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination preparation of this Escrow Agreement or and in performing its duties under this Escrow Agreement (the resignation "Escrow Fees") which will be invoiced to SystemSoft. ----------- SystemSoft will be responsible for all of the such Escrow AgentFees.
(g) The Escrow Agent makes no representation will be, and hereby is, indemnified and saved harmless by SystemSoft and the Stockholder Representative, jointly and severally, from all liabilities, losses, costs and expenses (including reasonable attorneys' fees and expenses) which may be incurred by it as a result of or arising out of this Escrow Agreement, including its involvement in any arbitration or litigation arising from performance of its duties under this Escrow Agreement, other than litigation or arbitration resulting from or with respect to any action taken or omitted by the validity, value, genuineness Escrow Agent for which it will have been adjudged grossly negligent or the collectibility guilty of any security willful misconduct or other documents or instrument held by or delivered to itbad faith. Such indemnification will survive termination of this Escrow Agreement.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated hereunder by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of giving thirty (i30) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its prior written notice of resignation to SystemSoft and the other parties heretoStockholder Representative. If at that time Prior to the effective date of the resignation as specified in such notice, SystemSoft will issue to the Escrow Agent has not received a designation written instruction authorizing redelivery of the Escrow Shares to a bank or trust company that it selects. Such bank or trust company shall have capital, surplus and undivided profits in excess of $100,000,000. If, however, SystemSoft shall fail to name a successor escrow agent within twenty (20) days after the notice of resignation from the Escrow Agent, the Escrow Agent's sole responsibility after that time Stockholder Representative shall be entitled to safekeep name such successor escrow agent. If no successor escrow agent is named by SystemSoft or the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderStockholder Representative, the Escrow Agent shall be entitled may apply to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery for appointment of a successor escrow agent.
(i) If a controversy arises between one or more of the parties to this Escrow Agreement, as to whether or not the Escrow Agent will distribute any of the Escrow Funds Shares, or (ii) a written agreement executed by the as to any other parties hereto directing delivery matter arising out of or relating to this Escrow Agreement or the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the partiesShares, the Escrow Agent is instructed will not be required to determine the controversy and need not make any distribution of the Escrow Shares but may retain the same until the rights of the parties to the dispute will have finally been determined by an arbitration panel as follows:
(iprovided for in Section 2(c) That of this Escrow Agreement or until it receives joint written instructions with respect thereto from the Stockholder Representative and SystemSoft. If a controversy of the type referred to in this Section 3 arises, the Escrow Agent may, but shall be under no obligation to actduty whatsoever to, except request that the parties commence arbitration proceedings as and to provided in Section 2(c) of this Escrow Agreement for determination of the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfactioncontroversy, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection will promptly comply with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) aboverequest.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Escrow Agreement (Systemsoft Corp)
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under liable for any duty actions taken or omitted by it, or any action suffered by it to give be taken or omitted by it, in good faith and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Funds held Agent), statement , instrument , report or other paper or document (not only as to its due execution and the validity and effectiveness of its provision, but also as to the truth and acceptability of any information therein contained) which is believed by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any be genuine and all matters pertinent hereto. No implied duties to be signed or obligations shall be read into this Escrow Agreement against presented by the Escrow Agentproper person or person. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by a writing delivered to the provisions Escrow Agent signed by the proper party or parties and, if the duties or rights of any other agreement among the parties hereto except this Escrow Agreement.
(c) Agent are affected, unless it shall have given its prior written consent thereto. The Escrow Agent shall not be liable, except responsible for its own gross negligence, willful misconduct the sufficiency or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agentaccuracy, the other parties hereto form of, or the execution validity, value or genuineness of any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall jointly and severally indemnify and hold harmless the Escrow Agent (and be responsible or liable in any successor Escrow Agent) from and against respect on account of the identity, authority or rights of the person executing or delivering or purporting to execute or deliver any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, document or property paid or delivered by the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with under the terms provisions hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken loss which may be incurred by reason of any investment of any monies or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited properties which it holds hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means right to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fundsassume, or in the absence of written notice to the contrary from the proper person or persons, that a fact or an event that by reason of which an action would or might be taken by the Escrow Agent does not exist or has not occurred, without incurring liability for any action taken or omitted, in good faith is and in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order exercise of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fundsits own best judgment, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with reliance upon such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealableassumption. The Escrow Agent shall act on such court order be indemnified and legal opinions without further question.
(l) Notwithstanding anything to held harmless by the contrary contained hereinCompany form and against any expenses, in the event of any dispute between the parties hereto as to the facts of defaultincluding counsel fees and disbursements, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, loss suffered by the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way directly or indirectly arises out of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees or relates to pay the Escrow Agent as compensation for this Agreement, the services of the Escrow Agent hereunder, the monies or other property held by it hereunder or any such expense or loss. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if a fee of $1,500 as payment claim in full for respect thereof shall be made against the services other parties hereto, notify such parties thereof in writing; but the failure by the Escrow Agent to be rendered by give such notice shall not relieve any party form any liability which such party may have to the Escrow Agent hereunder. In additionUpon the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow Account or it may deposit the Escrow Account with the clerk of any appropriate court or it may retain the Escrow Account pending receipt of a final, non-appealable order of a court having jurisdiction over all of the parties hereto directing to whom and under what circumstances the Escrow Account is to be disbursed and delivered. The Escrow Agent shall be entitled to reasonable compensation from the Company for all services rendered by it hereunder. From time to time on and after the date hereof, the Company agrees shall deliver or cause to pay all reasonable expenses, disbursements and advances incurred or made by be delivered to the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses such further documents and disbursements of its counsel).
(n) No printed instruments and shall do or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of cause to be done such further acts as the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless reasonably request (it being understood that the Escrow Agent shall first have given no obligation to make such request) to carry out more effectively the provisions and purposes of this Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder. The Escrow Agent may resign at any time and be discharged from its specific duties as Escrow Agent hereunder by its giving the Company at least thirty (30) days' prior written consent notice thereof. As soon as practicable after its resignation, the Escrow Agent shall turn over to a successor escrow agent appointed by the Company, all monies and property held hereunder upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no new escrow agent is so appointed in the sixty (60) day period following the giving of such mention(s)notice of resignation, which consent the Escrow Agent may deposit the Escrow Account with any court it deems appropriate. The Escrow Agent shall resign and be discharged form its duties as Escrow Agent hereunder if so requested in writing at anytime by the Company, provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided above. Notwithstanding anything herein to the contrary, the Escrow Agent shall not be unreasonably withheld relieved from liability thereunder for its own gross negligence or delayedits own willful misconduct.
Appears in 1 contract
Sources: Escrow Agreement (4 Brandon I Inc)
Concerning the Escrow Agent. (a) The Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be under responsible for any duty of the agreements referred to give or described herein (including without limitation the Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Escrow Funds held by it hereunder any greater degree Agreement on its part to be performed, each of care than it gives its own similar property which is ministerial (and shall not be required construed to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(bbe fiduciary) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any in nature, and all matters pertinent hereto. No no implied duties or obligations of any kind shall be read into this Escrow Agreement against or on the part of the Escrow Agent. , (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility or duty to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Escrow Agent shall not be bound liable to anyone for any action taken or omitted to be taken by it hereunder except in the provisions case of any other agreement among the parties hereto except Escrow Agent's gross negligence or willful misconduct in breach of the terms of this Escrow Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even, if the Escrow Agent has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except for its to the extent that such action or omission of any book-entry depository, securities intermediary or other subescrow agent was caused by the Escrow Agent's own gross negligence, negligence or willful misconduct or in breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderis hereby authorized, judgment, certification, demand, notice, instrument in making or other writing delivered to it hereunder without being required to determine the authenticity or the correctness disposing of any fact stated therein investment permitted by this Escrow Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as a subagent of the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon or for any instrument third person or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do sodealing as principal for its own account.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to Notwithstanding any matter relating to term appearing in this Escrow Agreement and to the contrary, in no instance shall not the Escrow Agent be liable required or obligated to distribute any Escrow Property (or take other action that may be called for any action hereunder to be taken by the Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Escrow Agreement in good form, or omitted in accordance with such advice(ii) passage of the applicable time period (or both, except for any action constituting gross negligence, willful misconduct or a breach as applicable under the terms of this Escrow Agreement.), as the case may be
(f) The Escrow Agent is serving as escrow holder only Unless and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as except to the validityextent otherwise expressly set forth herein, valueall deposits and payments hereunder, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as pursuant to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor terms hereof (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory limitation all payments to the Escrow Agent pursuant to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained hereinSection 6 hereof), in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) aboveU.S. dollars.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under liable for any duty actions taken or omitted by it, or any action suffered by it to give be taken or omitted by it, in good faith and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Funds held Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provision, but also as to the truth and acceptability of any information therein contained) which is believed by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any be genuine and all matters pertinent hereto. No implied duties to be signed or obligations shall be read into this Escrow Agreement against presented by the Escrow Agentproper person or person. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by a writing delivered to the provisions Escrow Agent signed by the proper party or parties and, if the duties or rights of any other agreement among the parties hereto except this Escrow Agreement.
(c) Agent are affected, unless it shall have given its prior written consent thereto. The Escrow Agent shall not be liable, except responsible for its own gross negligence, willful misconduct the sufficiency or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agentaccuracy, the other parties hereto form of, or the execution validity, value or genuineness of any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall jointly and severally indemnify and hold harmless the Escrow Agent (and be responsible or liable in any successor Escrow Agent) from and against respect on account of the identity, authority or rights of the person executing or delivering or purporting to execute or deliver any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, document or property paid or delivered by the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with under the terms provisions hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken loss which may be incurred by reason of any investment of any monies or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited properties which it holds hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means right to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fundsassume, or in the absence of written notice to the contrary from the proper person or persons, that a fact or an event that by reason of which an action would or might be taken by the Escrow Agent does not exist or has not occurred, without incurring liability for any action taken or omitted, in good faith is and in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order exercise of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fundsits own best judgment, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with reliance upon such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealableassumption. The Escrow Agent shall act on such court order be indemnified and legal opinions without further question.
(l) Notwithstanding anything to held harmless by the contrary contained hereinCompany from and against any expenses, in the event of any dispute between the parties hereto as to the facts of defaultincluding counsel fees and disbursements, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, loss suffered by the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way directly or indirectly arises out of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees or relates to pay the Escrow Agent as compensation for this Agreement, the services of the Escrow Agent hereunder, the monies or other property held by it hereunder or any such expense or loss. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if a fee of $1,500 as payment claim in full for respect thereof shall be made against the services other parties hereto, notify such parties thereof in writing; but the failure by the Escrow Agent to be rendered by give such notice shall not relieve any party from any liability which such party may have to the Escrow Agent hereunder. In additionUpon the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow Account or it may deposit the Escrow Account with the clerk of any appropriate court or it may retain the Escrow Account pending receipt of a final, non-appealable order of a court having jurisdiction over all of the parties hereto directing to whom and under what circumstances the Escrow Account is to be disbursed and delivered. The Escrow Agent shall be entitled to reasonable compensation from the Company for all services rendered by it hereunder. From time to time on and after the date hereof, the Company agrees shall deliver or cause to pay all reasonable expenses, disbursements and advances incurred or made by be delivered to the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses such further documents and disbursements of its counsel).
(n) No printed instruments and shall do or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of cause to be done such further acts as the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless reasonably request (it being understood that the Escrow Agent shall first have given no obligation to make such request) to carry out more effectively the provisions and purposes of this Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder. The Escrow Agent may resign at any time and be discharged from its specific duties as Escrow Agent hereunder by its giving the Company at least thirty (30) days' prior written consent notice thereof. As soon as practicable after its resignation, the Escrow Agent shall turn over to a successor escrow agent appointed by the Company, all monies and property held hereunder upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no new escrow agent is so appointed in the sixty (60) day period following the giving of such mention(s)notice of resignation, which consent the Escrow Agent may deposit the Escrow Account with any court it deems appropriate. The Escrow Agent shall resign and be discharged form its duties as Escrow Agent hereunder if so requested in writing at anytime by the Company, provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided above. Notwithstanding anything herein to the contrary, the Escrow Agent shall not be unreasonably withheld relieved from liability thereunder for its own gross negligence or delayedits own willful misconduct.
Appears in 1 contract
Sources: Escrow Agreement (International Commerce Development Corp)
Concerning the Escrow Agent. (a) Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation the Merger Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrow Funds held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all in the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent’s gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any other agreement among such loss or damage and regardless of the parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, except for its own gross negligencesecurities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, willful misconduct securities intermediary or breach of this Escrow Agreement, and, except with respect other subescrow agent has to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, except to the extent that such action or omission of any book-entry depository, securities intermediary or other parties hereto shall jointly and severally indemnify and hold harmless subescrow agent was caused by the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment ’s own gross negligence or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or in breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderis hereby authorized, judgment, certification, demand, notice, instrument in making or other writing delivered to it hereunder without being required to determine the authenticity or the correctness disposing of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed investment permitted by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any documentthis Agreement, or make in carrying out any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation sale of the Escrow Agent.
Property permitted by this Agreement, to deal with itself (gin its individual capacity) The Escrow Agent makes no representation or with any one or more of its affiliates, whether it or such affiliate is acting as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation a subagent of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein person or dealing as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability principal for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) aboveown account.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Concerning the Escrow Agent. (a) Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation the Stock Purchase Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with reasonably acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and reasonably believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility or duty to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrow Funds held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all in the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent’s gross negligence or willful misconduct in breach of the terms of this Agreement. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any other agreement among such loss or damage and regardless of the parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, except securities intermediary or other sub-escrow agent employed by the Escrow Agent than it shall have for its own gross negligence, willful misconduct actions or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delaysomissions hereunder.
(d) The Escrow Agent shall be entitled to rely upon any orderis hereby authorized, judgment, certification, demand, notice, instrument in making or other writing delivered to it hereunder without being required to determine the authenticity or the correctness disposing of any fact stated therein investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as a subagent of the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon or for any instrument third person or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do sodealing as principal for its own account.
(e) The Notwithstanding any term of this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrow Funds (or take other action than may act pursuant be called for hereunder to be taken by the advice Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Agreement in good form, or (ii) passage of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken the applicable time period (or omitted in accordance with such adviceboth, except for any action constituting gross negligence, willful misconduct or a breach as applicable under the terms of this Escrow Agreement), as the case may be.
(f) The Escrow Agent is serving as escrow holder only Unless and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as except to the validityextent otherwise expressly set forth herein, valueall deposits and payments hereunder, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as pursuant to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor terms hereof (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory limitation all payments to the Escrow Agent pursuant to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained hereinSection 7), in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) aboveU.S. dollars.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Stock Purchase Agreement (Parametric Technology Corp)
Concerning the Escrow Agent. (a) Each Interested Party acknowledges and agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation the Purchase Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility or duty to make inquiry as to or to determine the genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the authority of the person signing or presenting the same, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Escrow Agent shall not be under liable to anyone for any duty action taken or omitted to give the Escrow Funds held be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all in the duties case of the Escrow Agent with respect to any and all matters pertinent heretoAgent’s gross negligence or willful misconduct. No implied duties or obligations In no event shall be read into this Escrow Agreement against the Escrow Agent. The Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall not be bound by has been informed of the provisions likelihood of any other agreement among such loss or damage and regardless of the parties hereto except this Escrow Agreementform of action.
(c) The Escrow Agent shall not be liablehave no more or less responsibility or liability on account of any action or omission of any book-entry depository, except for its own gross negligencesecurities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, willful misconduct securities intermediary or breach of this Escrow Agreement, and, except with respect other subescrow agent has to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, except to the extent that such action or omission of any book-entry depository, securities intermediary or other parties hereto shall jointly and severally indemnify and hold harmless subescrow agent was caused by the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment ’s own gross negligence or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or in breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any orderis hereby authorized, judgment, certification, demand, notice, instrument in making or other writing delivered to it hereunder without being required to determine the authenticity or the correctness disposing of any fact stated therein investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as a subagent of the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon or for any instrument third person or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do sodealing as principal for its own account.
(e) The Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrow Property (or take other action that may act pursuant be called for hereunder to be taken by the advice Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Agreement in good form, or (ii) passage of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken the applicable time period (or omitted in accordance with such adviceboth, except for any action constituting gross negligence, willful misconduct or a breach as applicable under the terms of this Escrow Agreement), as the case may be.
(f) The Escrow Agent is serving as escrow holder only Unless and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as except to the validityextent otherwise expressly set forth herein, valueall deposits and payments hereunder, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as pursuant to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor terms hereof (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory limitation all payments to the Escrow Agent pursuant to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained hereinSection 8, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) aboveU.S. dollars.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Partnership Interest Purchase Agreement (Liberty Property Limited Partnership)
Concerning the Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrow Funds Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct, and, except with respect to claims based upon such gross negligence, negligence or willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, and the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds cash held by it hereunder in good faith, in accordance with the terms hereof, including, including without limitation, limitation any liability for any delays (not resulting from its gross negligence, negligence or willful misconduct or breach of this Escrow Agreementmisconduct) in the investment or reinvestment of the Escrow FundsEscrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, propriety or validity or of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and may assume assume, if in good faith, that any person purporting to give notice or advice, accept receipt of or execute any document, advice or make any statement or execute any document in connection with the provisions hereof, hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith and in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunderonly. Any payments of income from this the Escrow Agreement Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax identification I.D., number certification certification, or nonresident non-resident alien certifications. This Section 4(fparagraph (f) and paragraph (c) of this Section 4(c) 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agentescrow agent) may at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign as by giving written notice to such by delivering effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Funds Agent shall deliver the Escrowed Property to any successor Escrow Agent escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdictionjurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent will shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which that is 30 days after the date of delivery delivery: (A) to the Escrow Agent of its written the other parties' notice of resignation termination or (B) to the other parties heretohereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor Escrow Agentescrow agent, the Escrow Agent's sole responsibility after that time shall be to safekeep keep the Escrow Funds Escrowed Property safe until receipt of a designation of successor Escrow Agent escrow agent or a joint written disposition instruction by the other parties hereto or a final any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrow FundsEscrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds Escrowed Property until the Escrow Agent shall have received (i) a final nonappealable and non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Funds Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrow FundsEscrowed Property, in which event the Escrow Agent shall disburse the Escrow Funds Escrowed Property in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealablenon- appealable. The Escrow Agent shall act on such court order and legal opinions opinion without further question.
(l) Notwithstanding anything As consideration for its agreement to the contrary contained herein, in the event of any dispute between the parties hereto act as to the facts of defaultEscrow Agent as herein described, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent fees determined in accordance with the terms set forth on Exhibit F hereto (made a part of this Escrow Agreement as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunderif herein set forth). In addition, the Company agrees to pay reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) The other parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, prospectusesthe Registration Statement, notices, reports and promotional materialsmaterial) which mentions the Escrow Agent's name or the rights, powers powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to such mention(s), which consent shall not be unreasonably withheld or delayedthe use of its name and the reference to the escrow arrangement in the Registration Statement.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liableBuyer, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfactionone hand, and shall sustain no liability for its failure to act pending such process Sellers, on the other, will pay or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to have an affiliate pay the Escrow Agent as compensation for the services upon execution of the Escrow Agent hereunder, Agreement a fee $1,500 Acceptance Fee and annual fees of $1,500 as payment 2,000 if all investments are in full money market funds (or $6,000 if otherwise invested in Qualified Investments) for the services to be rendered by hereunder and to pay or reimburse the Escrow Agent hereunder. In addition, the Company agrees to pay upon request for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent it in performance of connection with carrying out its duties hereunder (including reasonable feeshereunder, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports trading commissions and promotional materials) which mentions fees and reasonable attorney’s fees and expenses. The Escrow Agent’s annual fee will not be pro-rated for any portion of a year the Escrow Agent's name or Agreement exists. Buyer and Seller will each be responsible for 50% of amounts payable to the rightsEscrow Agent pursuant to this Section 7(a) unless otherwise agreed by Buyer and Seller’s Representative.
(a) Other than as provided in paragraph 7(a), powers or duties Sellers’ Representative, on behalf of Sellers, and Buyer will jointly and severally indemnify and hold harmless the Escrow Agent and each director, employee, attorney, agent and affiliate of the Escrow Agent shall be issued by for, and hold it harmless against, any loss, liability or expense incurred without gross negligence or willful misconduct or bad faith on the other parties hereto or on such parties' behalf unless part of the Escrow Agent shall first have given or breach by the Escrow Agent of the terms of this Escrow Agreement, arising out of or in connection with its specific entering into this Escrow Agreement and carrying out its duties hereunder, including the costs and expenses of defending itself against any claim of liability. Notwithstanding the foregoing, as between Sellers’ Representative, on behalf of Sellers, and Buyer, any indemnity to be paid to the Escrow Agent pursuant to the preceding sentence will be borne 50% by Buyer and 50% by Sellers’ Representative, on behalf of Sellers severally and not jointly. Escrow Agent may deduct from the Escrow Fund any such expenses, costs, disbursements or advances described in Section 7(a) or 7(b).
(b) The Escrow Agent will prepare and deliver to Buyer and Sellers’ Representative within ten business days after the end of each calendar month prior to termination of this Escrow Agreement a written consent account describing all transactions with respect to the Escrow Accounts during such mention(s)calendar month.
(c) The duties and responsibilities of the Escrow Agent under this Agreement will be determined solely by the express provisions of this Escrow Agreement, which consent shall and no other or further duties or responsibilities will be implied.
(d) The Escrow Agent may act upon any instrument or other writing provided by a duly authorized officer of any of the parties hereto, believed by it in good faith to be genuine, and to be signed or presented by the proper person, and will not be unreasonably withheld liable in connection with the performance by it of its duties pursuant to the provisions of this Escrow Agreement, except for its own willful misconduct, gross negligence or delayedbreach by it of the express terms of this Escrow Agreement.
Appears in 1 contract
Concerning the Escrow Agent. (a) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) 22.01 The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine receive such fees as are reasonable and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable customary as compensation for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited its services hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability be reimbursed for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expensesexpense, disbursements disbursements, and advances incurred or made by the Escrow Agent in performance of its duties hereunder (hereunder. The annual fees shall be paid by the Buyer and any fees associated with actions specifically requested by a Representing Stockholder, including reasonable fees, expenses and disbursements those resulting from the sale of its counsel).
(n) No printed Parent Shares or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions securities by the Escrow Agent's name or Agent in accordance with Section 2(c) of this Escrow Agreement shall be borne by such Representing Stockholder, in each case as per the rightsFee Schedule (the "Fee Schedule") attached hereto as Annex B.
22.02 The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving notice of such resignation to the Buyer and the Representing Stockholders specifying a date when such resignation shall take effect. Upon such notice, powers or duties a successor Escrow Agent shall be appointed with the consent of the Buyer and the Representing Stockholders, such successor Escrow Agent to become Escrow Agent hereunder upon the resignation date specified in such notice. If the Buyer and the Representing Stockholders are unable to agree upon a successor Escrow Agent within thirty days after such notice, the Escrow Agent shall be issued entitled to apply to a court of competent jurisdiction for the appointment of a successor escrow agent, with any expenses to be shared equally by the Buyer on the one hand and the Representing Stockholders on the other parties hand. The Escrow Agent shall continue to serve until its successor accepts the terms of the escrow and receives the Escrow Fund. The Buyer and the Representing Stockholders hereto or on such parties' behalf unless shall have the right at any time upon their mutual consent to substitute a new Escrow Agent by giving notice thereof to the Escrow Agent then acting.
22.03 With the exception of Sections 1.02, 1.09 and 11 of the Agreement and the related definitions, the Escrow Agent shall first not be charged with knowledge of the Agreement. A copy of the Agreement has been delivered to the Escrow Agent prior to the date hereof. The Escrow Agent undertakes to perform such duties as are specifically set forth herein and no implied duties shall be read into this Escrow Agreement against the Escrow Agent; the Escrow Agent may conclusively rely, and shall be protected in acting or refraining from acting, on any written notice, instrument, or signature believed by it to be genuine and to have given its specific written consent been signed or presented by the proper Party or Parties duly authorized to such mention(s)do so; provided, however, in accordance with Section 6.15 of the Agreement, any action taken or decision made by the Representing Stockholders hereunder shall be evidenced in a writing signed by the Stockholder Representatives. The Buyer and the Representing Stockholders are the only authorized persons upon which consent the Escrow Agent may conclusively rely for all purposes under this Agreement. The Escrow Agent shall have no responsibility for the contents of any writing contemplated herein and may rely without any liability upon the contents thereof.
22.04 The Escrow Agent shall not be unreasonably withheld liable for any action taken or delayedomitted by it in good faith and believed by it to be authorized hereby or within the rights or power conferred upon it hereunder, nor for any action taken or omitted by it in good faith, and in accordance with advice of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any mistake or fact or error of judgment or for any acts or omissions of any kind unless attributable solely to its willful misconduct or gross negligence.
22.05 Each Party hereto agrees to indemnify the Escrow Agent and hold it harmless against any and all liabilities incurred by it hereunder as a consequence of such Party's action, and the Parties agree jointly and severally to indemnify the Escrow Agent and hold it harmless against any and all liabilities incurred by it hereunder that are not a consequence of any Party's action, except in either case for liabilities incurred by the Escrow Agent resulting solely from its own willful misconduct, which shall include distributing Escrow Shares to any member of the Buyer Indemnified Group pursuant to Section 3(b) prior to the expiration of the fourteen day notice period under Section 4(b)(i), or gross negligence.
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Concerning the Escrow Agent. (a) The duties and responsibilities of Escrow Agent shall be limited to those expressly set forth in this Escrow Agreement and the Acceptance of Escrow, the form of which is attached hereto as Exhibit A (the “Acceptance of Escrow”). With the exception of this Agreement and the Acceptance of Escrow, the Escrow Agent is not responsible for, or chargeable with knowledge of, any terms or provisions contained in any underlying agreement referred to in this Agreement or any other separate agreements and understandings between the parties except as specifically incorporated by reference or used herein. The Escrow Agent shall not be liable for the accuracy of any calculations or the sufficiency of funds for any purpose.
(b) The Escrow Agent shall not be under liable to anyone whatsoever by reason of any duty to give error or judgment or for any act done or step taken or omitted by it in good faith or for any mistake of fact or law or for anything which it may do or refrain from doing in connection herewith unless caused by or arising out of its own gross negligence or willful misconduct. Patriot and the shareholders of Crossflo shall, jointly and severally, indemnify and hold the Escrow Funds held Agent harmless from any and all liabilities and expenses (including, without limitation, its attorneys’ fees and expenses of litigation) which may arise out of or result from this Escrow Agreement or any action taken or omitted to be taken by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 of Escrow Agent in accordance with this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all , as the duties of the Escrow Agent same may be amended, modified or supplemented, except with respect to any such liability and all matters pertinent hereto. No implied duties expense as may result from the gross negligence or obligations shall be read into this Escrow Agreement against willful misconduct of the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct entitled to rely and shall be protected in acting in reliance upon any instructions or breach directions furnished to it in writing jointly by Patriot and the Crossflo Majority Shareholders or pursuant to any provision of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly Agreement and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon treat as genuine, and as the document it purports to be, any orderletter, judgment, certification, demand, notice, instrument paper or other writing delivered document furnished to it hereunder without being required to determine the authenticity by Patriot or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature Crossflo Majority Shareholders and reasonably believed by it to be genuine and may assume that any person purporting to give notice have been signed and presented by the proper party or advice, accept receipt of or execute any documentparties.
(d) The Escrow Agent, or make any statement in connection with successor to it hereafter appointed, may at any time resign by giving a Notice to Patriot and the provisions hereofshareholders of Crossflo and shall be discharged from its duties hereunder upon the appointment of a successor Escrow Agent as hereinafter provided or upon the expiration of thirty (30) days after such Notice is given. In the event of any such resignation, has been duly authorized a successor Escrow Agent, which shall be a bank or trust company organized under the laws of the State of California and having a combined capital and surplus of not less than $10,000,000, shall be jointly appointed by Patriot and Crossflo Majority Shareholders. Any such successor Escrow Agent shall deliver to do so.Patriot and the shareholders of Crossflo a written instrument accepting such appointment hereunder, and thereupon it shall succeed to all the rights and duties of the Escrow Agent hereunder and shall be entitled to receive the Escrow Amount held by the predecessor Escrow Agent hereunder. Exhibit C to Merger Agreement
(e) The Escrow Agent may act pursuant consult with counsel to the advice of counsel be selected and employed by it and shall be fully protected with respect to any matter relating to action under this Escrow Agreement and shall not be liable for any action taken or omitted suffered in good faith by the Escrow Agent in accordance with the opinion of such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreementcounsel.
(f) The Escrow Agent is serving shall receive compensation for its services at its customary rates as escrow holder only and has no interest in the Escrow Funds deposited hereundereffect from time to time. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force Such compensation, along with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other documents or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact fees or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as expenses and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, related disbursements and advances incurred or made by the Escrow Agent in performance of carrying out its duties obligations hereunder (including reasonable feesprior to such date, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued paid by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayedPatriot.
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