The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that: (a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest. (b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement. (c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent. (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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice. (f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent. (g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto. (j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question. (l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder. (m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto. (n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 3 contracts
Sources: Asset Sale and Purchase Agreement (Daisytek International Corporation /De/), Stock Purchase Agreement (Daisytek International Corporation /De/), Asset Sale and Purchase Agreement (Daisytek International Corporation /De/)
The Escrow Agent. To induce In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent to will act hereunderhonestly and in good faith and will exercise that degree of care, it is further agreed by the Buyer diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Purchaser and the Seller that:
(a) Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. The Escrow Agent shall not be under any will have no responsibility in respect of loss of the Subscription Proceeds except the duty to give exercise such care in the Escrowed Property held by safekeeping thereof as it hereunder any greater degree of care than it gives its own similar property and shall not be required would exercise if the Subscription Proceeds belonged to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel. The Escrow Agent will not be bound in any way by any contract between the provisions of any agreement among the other parties hereto except this Agreement.
(c) whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent shall will not be liablerequired to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, except signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent. In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its own gross negligence attention. In the event that the Subscription Proceeds are attached, garnished or willful misconduct andlevied upon under any court order, except with respect to claims based upon or if the delivery of such gross negligence property is stayed or willful misconduct that are successfully asserted against enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Buyer Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the Seller shall, severally and not jointly, indemnify and hold harmless contrary. If the Escrow Agent (obeys and complies with any successor escrow agent) from and against one-half such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any and all lossesother person, liabilitiesfirm or corporation by reason of such compliance, claimsnotwithstanding that such writs, actionsorders, damagesjudgments or decrees may be subsequently reversed, and expensesmodified, including reasonable attorneys' fees and disbursementsannulled, arising out of and in connection with this Agreementset aside or vacated. Without limiting the foregoingExcept as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall in no event not be liable in connection with its investment or reinvestment of by reason thereof to any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property parties hereto or any loss of interest incident to any other person, firm, association or corporation, even if thereafter any such delaysorder, judgment or decree may be reversed, modified, annulled, set aside or vacated. This Section 5(cIf the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto. The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) shall days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive notwithstanding any the termination of this Agreement or the resignation or termination of the Escrow Agent.
(d) The Escrow Agent shall be entitled . Notwithstanding anything herein to rely in good faith upon any orderthe contrary, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument written instructions given by the Company and the Purchaser jointly. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or signature believed by it in good faith between any other persons or between any of them with respect to be genuine and may assume that the Subscription Agreement, this Agreement or any person purporting matters arising thereto, or with respect to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Subscription Proceeds, the Escrow Agent may act pursuant in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 3 contracts
Sources: Escrow Agreement (Doranetti Music Inc), Escrow Agreement (Doranetti Music Inc), Escrow Agreement (Doranetti Music Inc)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property duties, responsibilities and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties 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 Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound subject to, nor required to comply with, any other agreement to which the Company is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from the Company or an entity acting on its behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder.
(b) The Escrow Property shall be held by the provisions Escrow Agent either directly or through the Federal Reserve/Treasury Book-Entry System for United States and federal agency securities (the “Book-Entry System”), The Depository Trust Company, a clearing agency registered with the Securities and Exchange Commission (“DTC”), or through any other clearing agency or similar system (a “Clearing Agency”). The Escrow Agent shall have no responsibility and shall not be liable for ascertaining or acting upon any calls, conversions, exchange offers, tenders, interest rates changes, or similar matters relating to securities held at DTC or with any Clearing Agency unless the Escrow Agent shall have received actual and timely notice of the same, nor shall the Escrow Agent have any agreement among responsibility or liability for the other parties hereto except this Agreementactions or omissions to act of the Book-Entry System, DTC or any Clearing Agency.
(c) 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 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 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.
(d) 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 or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless on its part. In no event shall the Escrow Agent be liable (and i) for acting in accordance with or conclusively relying upon any successor escrow agentinstruction, notice, demand, certificate or document from the Company or any entity acting on behalf of the Company, (ii) from and against one-half of for any and all lossesindirect, liabilitiesconsequential, claims, actions, punitive or special damages, regardless of the form of action and expenseswhether or not any such damages were foreseeable or contemplated, including reasonable attorneys' fees and disbursements(iii) for the acts or omissions of its nominees, arising out of and in connection with this Agreement. Without limiting correspondents, designees, agents, subagents or subcustodians, (iv) for the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation, limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property Escrow Property, or any loss of interest or income incident to any such delays. This Section 5(c, or (v) shall survive notwithstanding any termination for an amount in excess of this Agreement or the resignation value of the Escrow AgentProperty, valued as of the date of deposit, but only to the extent of direct money damages.
(de) The Escrow Agent may consult with legal counsel of its own choosing at the expense of the Company as to any matter relating to this Escrow Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel. If such expenses are to be billed to the Company, the Company will be informed of such expenses before they are incurred; provided, however, that failure to provide such notice will not affect the Company’s payment obligations hereunder.
(f) The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(g) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eh) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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 shall not be under any duty to give the Escrow 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 in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(and any successor escrow agentj) may at At any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged may request an instruction in writing in English from the Company and may, at its own option, include in such request the course of action it proposes to take and from the date on which it proposes to act, regarding any and all further obligations matter arising in connection with this Agreementits duties and obligations hereunder. The resignation of the Escrow Agent will take effect shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (the "Resignation Date"3) which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 business days after the date Company receives the Escrow Agent’s request for instructions and its proposed course of delivery of its written notice of resignation action, and provided further that, prior to the other parties hereto. Upon the appointment of a successor escrow agentso acting, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation the written instructions requested.
(k) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of a successor escrow agentsecurities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent's sole responsibility after , absent gross negligence, shall not be responsible or liable in the Resignation Date event such communication is not an authorized or authentic communication of the Company or is not in the form the Company sent or intended to send (whether due to fraud, distortion or otherwise). The Company shall be to safekeep indemnify the Escrowed Property Escrow Agent against any loss, liability, claim or expense (including legal fees and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoexpenses) it may incur with its acting in accordance with any such communication.
(jl) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Company which eliminates such ambiguity or uncertainty.
(m) In the event of any dispute between or conflicting claims among the Company and any other person or entity with respect to any Escrow Property, 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 any other person for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to 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 satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Escrow Agent shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed an obligation of, the Company.
(n) 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 conclusively rely without any liability upon the contents thereof.
(ko) In the event of The Escrow Agent does not have any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or interest in the event that Escrow Property deposited hereunder but is serving as escrow holder only and 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 good faith is in doubt as to what action it should take hereunder, connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from this Escrow Account shall be entitled subject to retain the Escrowed Property and Interest, if any, until 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 certifications, or W-8 forms for non resident alien certifications. This paragraph shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by survive notwithstanding any termination of this Escrow Agreement or the opinion of counsel referred to in Section 3(b)) directing delivery resignation or removal of the Escrowed Property and Interest, if any, or Escrow Agent.
(iip) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on provide to the Company weekly statements identifying transactions, transfers or holdings of Escrow Property and each such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services statement shall be deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 Company unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize is notified in writing, by the Escrow Agent, for any securities held hereunderCompany, to use the services contrary within thirty (30) business days of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemdate of such statement.
Appears in 3 contracts
Sources: Subscription Escrow Agreement, Subscription Escrow Agreement (Paladin Realty Income Properties Inc), Subscription Escrow Agreement (Paladin Realty Income Properties Inc)
The Escrow Agent. To induce 4.1 The obligations of the Escrow Agent are limited to act hereunderthose specifically provided in this Agreement and no other, it is further agreed by the Buyer and the Seller that:
(a) Escrow Agent shall have no liability under, and no duty to inquire into the terms and provisions of, any agreement between the parties hereto. The Escrow Agent shall not be under any duty is acting hereunder as an accommodation to give the 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 Escrowed Property held hereunder except as directed in this Agreementparties hereto. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the The duties of the Escrow Agent with respect to are purely ministerial in nature, and it shall not incur any and all matters pertinent hereto. No implied duties liability whatsoever, except for its willful misconduct or obligations shall be read into this Agreement against the Escrow Agentgross negligence. The Escrow Agent may consult with counsel of its choice, and shall not be bound by liable for following the provisions advice of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofcounsel. The Escrow Agent may act in reliance upon on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel.
4.2 The Holders and the Pledgor jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and hold harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages, fees and expenses (including reasonable attorney's fees and expenses) (all of the foregoing, "Losses") which the Escrow Agent, its successors or assigns may at any instrument time of times hereafter bear, sustain, suffer or signature believed be put unto for or by it in good faith to be genuine and may assume that any person purporting to give receipt reason arising out of or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice performance of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith its obligations in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination provisions of this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance with the terms hereof. The foregoing indemnities in this Section 4.2 shall survive the resignation or substitution of the Escrow Agent and the termination of this Agreement. The Pledgor and Holders shall pay any Losses of the Escrow Agent as incurred by the Escrow Agent.
(g) 4.3 In case proceedings should hereafter be taken in any court respecting the Securities, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Section 4.2 against its costs of such proceedings.
4.4 [Intentionally Omitted.]
4.5 The Escrow Agent makes no representation will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Securities as herein directed and to deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Securities or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, value, genuineness or but it shall be sufficient for all purposes under this Agreement insofar as the collectability of any security or other document or instrument held Escrow Agent is concerned that the said documents are deposited with it as herein specified by or delivered to itthe parties executing this Agreement with the Escrow Agent.
(h) 4.6 The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other item deposited with it or of any signature thereon or for the identity, authority or right of any person executing or depositing the same and shall not have any liability for acting in accordance with any written instructions or certificates given to it hereunder signed by the proper parties.
4.7 In no event will the Escrow Agent be called deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to advise bring it to its attention.
4.8 In the event that the Securities are attached, garnished or levied upon under any party as court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the wisdom in selling contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or retaining or taking or refraining from any action with respect decrees it will not be liable to any securities of the parties hereto or to any other property deposited hereunderperson, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated.
(i) 4.9 The Escrow Agent (is authorized and directed to disregard in its sole discretion any successor escrow agent) and all notices and warnings which may at be given to it by any time resign as such of the parties hereto or by delivering any other person, firm, association or corporation. It will, however, obey the Escrowed Property and Interestorder, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing judgment or to decree of any court of competent jurisdiction, whereupon and it is hereby authorized to comply with and obey such orders, judgments or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated.
4.10 If protest is made to any action, contemplated by the Escrow Agent under this Agreement, the Escrow Agent may continue to hold the Securities until the right to the documents is legally determined by a court of competent jurisdiction or otherwise.
4.11 If written notice of protest is made by any of the Holders or the Pledgor to the Escrow Agent to any action contemplated by the Escrow Agent under this Agreement, and such notice sets out reasons for such protest the Escrow Agent will be entitled to continue to hold the Securities until the right to the documents is legally determined by a court of competent jurisdiction or otherwise.
4.12 This Agreement may be terminated at any time by and upon the receipt by the Escrow Agent of ten (10) days' written notice of termination executed by the Holders and the Pledgor, directing the distribution of all property then held by the Escrow Agent under and pursuant to this Agreement. The Escrow Agent shall have the sole and absolute right to resign in accordance with the provisions of this Section 4.12. The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving at least ten (10) days' prior written notice of such resignation to the Holders and Pledgor and specifying a date upon which such resignation shall take effect. Upon receipt of such notice, a successor escrow agent shall jointly be appointed by the Holders and Pledgor, such successor escrow agent to become the Escrow Agent hereunder on the resignation date specified in such notice. If no successor Escrow Agent is appointed prior to the date specified, the Escrow Agent shall have the right at any time to deposit the Securities with a court of competent jurisdiction, as specified in Section 6.5 hereof, and the Escrow Agent shall have no further obligation with respect thereto. The Holders and Pledgor, acting jointly, may at any time substitute a new escrow agent by giving ten (10) days' notice thereof to the Escrow Agent then acting and paying all fees and expenses of such Escrow Agent. In the alternative, in the event of a dispute in relation to the release of the Securities, the Escrow Agent may resign fifteen (15) days after giving written notice of such resignation to the parties hereto and depositing the Securities with an appropriate court, as specified in Section 6.5 hereof, and the Escrow Agent shall have no further obligation with respect hereto or under this Agreement, in any manner. This Agreement shall automatically terminate if and when all of the Securities shall have been distributed by the Escrow Agent in accordance with the terms of this Agreement.
4.13 Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Pledgor and all of the Holders jointly.
4.14 If any dispute should arise with respect to the ownership or right of possession of the Securities, or should the Escrow Agent, in its sole judgement, receive conflicting instructions with respect to the instructions contained in this Agreement or to any distribution of the Securities, the Escrow Agent is authorized and directed to retain in its possession, without liability to anyone, all or any portion of the Securities until such dispute shall have been settled either by agreement of the parties concerned by filing of written directions signed by the Holders and Pledgor to the Escrow Agent or by a final decree, but the Escrow Agent shall be discharged under no duty whatsoever to institute or defend any such proceedings. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between any of the Holders and from the Pledgor or between any and all further obligations other persons or between any of them with respect to the Pledge Agreement, this Agreement or any matters arising in connection thereto, or with this Agreement. The resignation of respect to the Pledged Stock, the Escrow Agent may in its sole discretion deliver and interplead the Securities into court, as specified in Section 6.5 hereof, and such delivery and interpleading will take effect on the date (the "Resignation Date") which is the earlier be an effective discharge to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) 4.15 The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes be promptly reimbursed, jointly and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied severally by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property Holders and InterestPledgor, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances expenses incurred or made by the Escrow Agent in the performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, services pursuant to use the services of any United States central securities depository it deems appropriate, this Agreement including, but not limited to, legal fees, including all fees and expenses incurred in connection with its resignation pursuant to Section 4.12.
4.16 [Intentionally omitted.]
4.17 The Holders and Pledgor shall each bear all of their own fees and expenses incurred by them in resolving any dispute arising under this Agreement. The Holders and Pledgor shall jointly and severally reimburse the Depository Trust Company Escrow Agent for any costs incurred by the Escrow Agent in connection with any dispute arising under this Agreement. The Holders and Pledgor shall jointly and severally reimburse the Federal Reserve Book Entry SystemEscrow Agent for any costs incurred in the performance of its duties hereunder.
Appears in 2 contracts
Sources: Escrow Agreement (Merlin Software Technologies International Inc), Escrow Agreement (Merlin Software Technologies International Inc)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound subject to, nor required to comply with, any other agreement to which the Purchaser or the Seller is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from the Purchaser or the Seller or an entity acting on its behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder.
(b) The Escrow Property shall be held by the provisions Escrow Agent either directly or through the Federal Reserve/Treasury Book-Entry System for United States and federal agency securities (the "Book-Entry System"), The Depository Trust Company, a clearing agency registered with the Securities and Exchange Commission ("DTC"), or through any other clearing agency or similar system (a "Clearing Agency"). The Escrow Agent shall have no responsibility and shall not be liable for ascertaining or acting upon any calls, conversions, exchange offers, tenders, interest rates changes, or similar matters relating to securities held at DTC or with any Clearing Agency unless the Escrow Agent shall have received actual and timely notice of the same, nor shall the Escrow Agent have any agreement among responsibility or liability for the other parties hereto except this Agreementactions or omissions to act of the Book-Entry System, DTC or any Clearing Agency.
(c) 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 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 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, 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.
(d) 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 or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against on its part. In no event shall the Escrow AgentAgent be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Buyer Purchaser and the Seller shallor any entity acting on behalf of the Purchaser or the Seller, severally and not jointly(ii) for any indirect, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all lossesconsequential, liabilities, claims, actions, punitive or special damages, regardless of the form of action and expenseswhether or not any such damages were foreseeable or contemplated, including reasonable attorneys' fees and disbursements(iii) for the acts or omissions of its nominees, arising out of and in connection with this Agreement. Without limiting correspondents, designees, agents, subagents or subcustodians, (iv) for the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation, limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property Escrow Property, or any loss of interest or income incident to any such delays. This Section 5(c, or (v) shall survive notwithstanding any termination for an amount in excess of this Agreement or the resignation value of the Escrow AgentProperty, valued as of the date of deposit, but only to the extent of direct money damages.
(de) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Purchaser and the Seller, as to any matter relating to this Escrow Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
(f) The Escrow Agent shall 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 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 the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(g) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eh) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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 shall not be under any duty to give the Escrow 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 in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(and any successor escrow agentj) may at At any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by Escrow Agent may request an instruction in writing in English from the Buyer Purchaser and the Seller and may, at its own option, include in writing or such request the course of action it proposes to take and the date on which it proposes to act, regarding any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations matter arising in connection with this Agreementits duties and obligations hereunder. The resignation of the Escrow Agent will take effect shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (the "Resignation Date"3) which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 business days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer Purchaser and the Seller on receives the appointment Escrow Agent's request for instructions and its proposed course of such successor escrow agent. If at the Resignation Date action, and provided further that, prior to so acting, the Escrow Agent has not received a designation the written instructions requested.
(k) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of a successor escrow agentsecurities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent's sole responsibility after , absent gross negligence, shall not be responsible or liable in the Resignation Date event such communication is not an authorized or authentic communication of the Purchaser or the Seller or is not in the form the Purchaser and the Seller sent or intended to send (whether due to fraud, distortion or otherwise). The Purchaser and the Seller shall be to safekeep indemnify the Escrowed Property Escrow Agent against any loss, liability, claim or expense (including legal fees and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoexpenses) it may incur with its acting in accordance with any such communication.
(jl) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Purchaser and the Seller, which eliminates such ambiguity or uncertainty.
(m) In the event of any dispute between or conflicting claims among the Purchaser and the Seller and any other person or entity with respect to any Escrow Property, 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 Purchaser and the Seller for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to 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 satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Escrow Agent shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys' fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed a joint and several obligation of, the Purchaser and the Seller.
(n) 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 conclusively rely without any liability upon the contents thereof.
(ko) In The Escrow Agent does not have any interest in the event Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Seller 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 way of any disagreement between the Buyer such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Purchaser and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or in the event that will provide the Escrow Agent in good faith is in doubt as to what action it should take hereunderwith appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. This paragraph shall survive notwithstanding any termination of this Escrow Agreement or the resignation or removal of the Escrow Agent shall be entitled to retain the Escrowed Property and Interest, if any, until the Escrow Agent shall have received Agent.
(ip) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on provide to the Purchaser and the Seller monthly statements identifying transactions, transfers or holdings of Escrow Property and each such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services statement shall be deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be Purchaser and the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 Seller unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize is notified in writing, by the Escrow Agent, for any securities held hereunderPurchaser and the Seller, to use the services contrary within thirty (30) business days of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemdate of such statement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Thoratec Corp), Asset Purchase Agreement (Diametrics Medical Inc)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held have no duties or obligations hereunder except as directed in those specifically set forth herein and such duties and obligations shall be determined solely by the express provisions of this Agreement. Uninvested funds held hereunder The Escrow Agent shall not earn or accrue interest.
(b) This Agreement expressly sets forth all have no liability under and no duty to inquire as to the provisions of any agreement other than this Agreement. In connection with its duties of hereunder, the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against protected in acting or refraining from acting upon any written notice, request, consent, certificate, order, affidavit, letter, telegram or other document furnished to it hereunder and believed by it to be genuine and to have been signed or sent by the proper party or parties. In the administration of the Escrowed Certificates, the Escrow AgentAgent may execute any of its powers and perform its duties hereunder directly or through agents or attorneys and may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be bound liable for the performance of agents selected by it with reasonable care or for anything done, suffered or omitted in good faith by it in accordance with the provisions advice or opinion of any agreement among the such counsel, accountants or other parties hereto except this Agreement.
(c) skilled persons. The Escrow Agent shall not have no duty to solicit any payments that may be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by due 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofhereunder. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted by it in good faith unless a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of the loss to an Escrow Party. The Escrow Agent shall not incur any liability for following the instructions set forth in this Agreement or written instructions given by an Escrow Party in accordance with such advicethis Agreement.
(fb) The Escrow Agent does not have any interest in In the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that event the Escrow Agent shall be responsible for income reporting only with respect uncertain as to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of its duties or rights under this Agreement or shall receive any instruction, claim or demand that, in the resignation opinion of the Escrow Agent.
, is in conflict with the provisions of this Agreement (g) The any of the foregoing, an “Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderDispute”), the Escrow Agent shall be entitled to retain refrain from taking any action with respect to such Escrow Agent Dispute until it shall be directed otherwise by a final and nonappealable order of a court of competent jurisdiction or by an instrument signed by all of the Escrowed Property and InterestEscrow Parties. In the event of any Escrow Agent Dispute, if any, until the Escrow Agent shall have received (i) be entitled to petition a Final Determination (as defined court of competent jurisdiction in Section 3(b) the County of New York, State of New York to resolve such Escrow Agent Dispute, and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery each of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by Escrow Parties consent to the Buyer and the Seller directing delivery jurisdiction of the Escrowed Property and Interest, if any, in which event the any such court with respect to any such Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. Dispute.
(c) The Escrow Agent shall act be reimbursed for all reasonable fees and expenses, including without limitation those fees set forth on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered Schedule III hereto, reasonable counsel fees and disbursements, incurred by the Escrow Agent hereunder shall be in connection with the amount performance of $2,500 for the initial year paid by the Buyer at the time of execution of its duties and obligations under this Agreement and $2,000 annually thereafter, together reasonable courier fees incurred by the Escrow Agent in connection with reimbursement for all reasonable expenses, disbursements and advances incurred or any deliveries required to be made by the Escrow Agent in connection with the performance of its duties hereunder (including and obligations under this Agreement. The Acquiror shall be responsible for all such reasonable fees, expenses fees and disbursements expenses. The Acquiror shall be liable for the payment of its counsel). All all such fees and expenses of incurred by the Escrow Agent, except for such fees and expenses incurred by the Escrow Agent due to (i) the failure of an Escrow Party to comply with any of its obligations hereunder or (ii) the requirement by an Escrow Party that the Escrow Agent perform duties outside the scope of this Agreement, which fees and expenses set forth in the immediately preceding clauses (i) and (ii) shall be paid by the Buyerapplicable Escrow Party.
(d) The Escrow Agent may resign at any time by giving at least 30 days’ prior written notice to the Escrow Parties, which resignation shall become effective upon the acceptance of appointment by the successor Escrow Agent as provided in this Section 6(d). Any fees or expenses The resigning Escrow Agent may appoint a successor Escrow Agent, reasonably acceptable to the Escrow Parties. If a successor Escrow Agent shall not have been appointed within 20 days after such notice of resignation, any of the Escrow Agent Parties or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent's name or , at the expense of the Escrow Parties, may apply to any court of competent jurisdiction to appoint a successor Escrow Agent. Notwithstanding the foregoing, any successor Escrow Agent shall be a financial institution organized under the laws of the United States of America and having a combined capital and surplus of not less than US $100,000,000. Any successor Escrow Agent, however appointed, shall execute and deliver to the predecessor Escrow Agent, with a copy to each of the Escrow Parties, an instrument accepting such appointment, and thereupon such successor Escrow Agent shall, without further act, become fully vested with all the rights, powers, or obligations and duties of the predecessor Escrow Agent hereunder with the same effect as if originally named the Escrow Agent herein. The Escrow Agent shall be issued by have the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize right to withhold an amount equal to any amount due and owing to the Escrow Agent, for plus any securities held hereunder, to use reasonable costs and expenses the services Escrow Agent reasonably believes may be incurred by the Escrow Agent in connection with termination of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemthis Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Jaharis Mary), Stock Purchase Agreement (Kos Pharmaceuticals Inc)
The Escrow Agent. To induce the 2.5 The Escrow Agent shall invest the Settlement Fund deposited pursuant to act hereunder, it is further agreed ¶2.1 hereof in instruments backed by the Buyer full faith and credit of the Seller that:United States Government or fully insured by the United States Government or an agency thereof and shall reinvest the proceeds of these instruments as they mature in similar instruments at their then-current market rates. All costs and risks related to the investment of the Settlement Fund shall be borne entirely by the Settlement Fund and shall not be borne in any way by any of the Released Persons.
(a) 2.6 The Escrow Agent shall not be under any duty to give disburse the Escrowed Property held Settlement Fund except: (i) as provided in the Stipulation; or (ii) by it hereunder any greater degree an order of care than it gives its own similar property and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interestthe Court.
(b2.7 Subject to further order(s) This Agreement expressly sets forth all and/or directions as may be made by the duties of Court, or as provided in the Stipulation, the Escrow Agent is authorized to execute such transactions as are provided for under the terms of the Stipulation. The Released Persons shall have no responsibility for, interest in, or liability whatsoever with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against to, the Escrow Agent. The Escrow Agent shall not be bound by the provisions actions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of transaction executed by the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed 2.8 All funds held by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect deemed and considered to income earned on investment be in custodia legis of the Escrowed Property Court, and is not responsible for any other reporting. This Section 5(fshall remain subject to the jurisdiction of the Court, until such time as such funds shall be distributed pursuant to the Stipulation and/or further order(s) shall survive notwithstanding any termination of this Agreement the Court.
2.9 Prior to the Effective Date, Lead Counsel, without further approval of Defendants or the resignation Court, may pay from the Settlement Fund reasonable costs of notice and settlement administration (“Notice and Administration Costs”) associated with the administration of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitySettlement, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent which costs shall not be called upon exceed $750,000. Such Notice and Administration Costs include, without limitation: the cost of identifying and locating members of the Class, mailing the Notice of Proposed Settlement of Class Action (the “Notice”) and Proof of Claim and Release and publishing notice (such amount shall include, without limitation, the actual costs of publication, printing and mailing the Notice, and reimbursement to advise any party as nominee owners of the reasonable costs of identifying and forwarding notice to their beneficial owners), soliciting Class claims, assisting with the wisdom in selling or retaining or taking or refraining from any action with respect filing of claims, administering and distributing the Net Settlement Fund to any securities or other property deposited hereunder.
(i) The Escrow Agent (Authorized Claimants, processing Proof of Claim and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property Release forms, and Interestpaying bank fees and costs, if any, to any successor escrow agent jointly designated and the administrative expenses incurred and fees charged by the Buyer and the Seller 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 Claims Administrator in connection with this Agreement. The resignation of providing notice and processing the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretosubmitted claims.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
The Escrow Agent. To induce Acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to act hereunderthe following terms and conditions, it is further agreed by which the Buyer parties to this Agreement hereby agree shall govern and control the Seller thatrights, duties and immunities of the Escrow Agent:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property duties and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties obligations of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into determined solely by the express provisions of this Escrow Agreement against and the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among between Seller and Purchasers or any third party, except that the other parties hereto except this Agreement.Escrow Agent is charged with knowledge of the Escrow Documents;
(b) This Escrow Agreement sets forth the duties and obligations of the Escrow Agent with respect to all matters pertinent thereto and such duties and obligations will terminate as set forth herein;
(c) The Escrow Agent shall not be liableresponsible for any failure or inability of the Seller or the Purchasers or of anyone else, except for to deliver the Escrow Fund to the Escrow Agent or otherwise to honor any of the provisions of this Escrow Agreement or the provisions of any of the other Purchaser Documents;
(d) The out-of-pocket fees and expenses of the Escrow Agent in administering this Escrow Agreement shall be borne by the Seller. Seller and Purchasers, jointly and severally, hereby agree to indemnify the Escrow Agent and each of its own partners, employees and agents (the "Indemnified Parties") for, and to hold each of the Indemnified Parties harmless against, any loss, liability or expense, including but not limited to reasonable attorneys' fees and expenses arising out of or in connection with its acceptance of, or the performance of its duties and obligations under this Escrow Agreement (including, but not limited to, any action taken or omitted by the Escrow Agent in connection with this Escrow Agreement or any action allegedly so taken or omitted) or by reason of, or as a result of, the Escrow Agent's compliance with the joint instructions of Seller and the Purchasers ; provided, however, that the Escrow Agent shall not be entitled to indemnification with respect to any loss, liability or expense which arises out of gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against on the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation part of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to shall be fully protected in acting on and relying upon any written notice, direction, request, waiver, consent, receipt or other paper or document which the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted Escrow Agent in good faith in accordance with such advice.believes to be genuine and to have been signed or presented by the proper party or parties;
(f) The Escrow Agent does shall not have be liable for any interest error of judgment, or for any act done or step taken or omitted by it in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay good faith or reimburse the Escrow Agent upon request for one-half of any transfer taxes anything which it may do or other taxes relating to the Escrowed Property incurred refrain from doing in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement herewith, except its own willful misconduct or the resignation of the Escrow Agent.gross negligence; and
(g) The Escrow Agent makes no representation may seek the advice of legal counsel (which may include a partner of the Escrow Agent) in the event of any dispute or question as to the validity, value, genuineness or the collectability construction of any security of the provisions of this Escrow Agreement or other document its duties hereunder, and it shall incur no liability and shall be fully protected in respect of any action taken, omitted or instrument held suffered by or delivered to itit in good faith in accordance with the written opinion of such counsel.
(h) The Escrow Agent shall not be called upon is acting, and the parties hereto understand that the Escrow Agent may continue to advise any party act, as counsel to the wisdom Purchasers in selling connection with the Purchaser Documents (including this Agreement) and the transactions contemplated thereunder or retaining hereunder, whether or taking not the Escrow Fund is being held by the Escrow Agent or refraining from any action with respect has been delivered to any securities or other property deposited hereunderan appropriate court in the State of New York.
(i) The Escrow Agent (does not have and will not have any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller interest in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of Fund but is serving only as escrow holder and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents only possession thereof.
(k) In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Patel Sanjay H), Escrow Agreement (Patel Sanjay H)
The Escrow Agent. To induce Notwithstanding anything herein to the contrary, the Escrow Agent to act hereunder, it is further agreed by shall promptly dispose of all or any part of the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except Fund as directed in this Agreementwriting jointly signed by the Investors and the Shareholders. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties The reasonable fees and expenses of the Escrow Agent Agent, including the fees and disbursements of its counsel, if any, in connection with respect to any and all matters pertinent hereto. No implied duties or obligations its performance of this Agreement shall be read into this Agreement against paid by the Escrow AgentCompany. The Escrow Agent shall not be bound by liable for, and the provisions Shareholders and the Investors shall jointly and severally indemnify the Escrow Agent against, any losses or claims arising out of any agreement among action taken or omitted in good faith hereunder and upon the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liableadvice of counsel, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreementmisconduct. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent may decline to act and shall not be entitled liable for failure to rely act if in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered doubt as to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofits duties under this Agreement. 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 receipt any notice or advice or make any statement or execute any document in connection with the provisions hereof instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so.
(e) . The Escrow Agent may act pursuant to the advice of counsel Agent's duties shall be determined only with respect to any matter relating reference to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only Warrants and has only possession thereof. The Buyer applicable laws, and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of is not charged with knowledge of, or any transfer taxes duties or other taxes relating to the Escrowed Property incurred responsibilities in connection herewith and shall indemnify and hold harmless the Escrow Agent from with, any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by agreement, including the Purchase Agreement 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 agreements executed in connection with this Agreementtherewith. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility the right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at the addresses set forth herein or at such other address as the parties shall provide, at least thirty (30) Business Days prior to the date specified for such resignation to take effect. If the contents of any writing of any third party contemplated herein as parties hereto do not designate a means to resolve disputes and may rely without any liability upon the contents thereof.
successor escrow agent within said thirty (k30) In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderBusiness Days, the Escrow Agent shall be entitled to retain may appoint a successor escrow agent. Upon the Escrowed Property effective date of such resignation, all cash and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) other payments and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered all other property then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in writing by the amount parties hereto. In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the parties hereto, the Escrow Agent shall have the right to interplead said parties in any court of $2,500 competent jurisdiction and request that such court determine such respective rights of the parties with respect to this Escrow Agreement, and upon doing so, the Escrow Agent shall be released from any obligations or liability to either party as a consequence of any such claims or demands. The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. The Escrow Agent shall not be responsible for and shall not be under a duty to examine into or pass upon the validity, binding effect, execution or sufficiency of this Escrow Agreement or of any agreement amendatory or supplemental hereto. The Company, the Shareholders and the Investors acknowledge and agree that the Escrow Agent (i) shall not be responsible for any of the agreements referred to herein but shall be obligated only for the initial year paid performance of such duties as are specifically set forth in this Escrow Agreement; (ii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve any expense or liability unless it shall have been furnished with acceptable indemnification; (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 reasonably believed by it to be genuine and to have been signed or presented by the Buyer at proper person, and shall have no responsibility for determining the time accuracy thereof, and (iv) may consult counsel satisfactory to it, including house counsel, and the opinion of execution such counsel 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 of such counsel. Neither the Escrow Agent nor any of its directors, officers or employees shall be liable to anyone for any action taken or omitted to be taken by it or any of its directors, officers or employees hereunder except in the case of gross negligence or willful misconduct. The Company, the Shareholders and the Investors, jointly and severally, covenant and agree to indemnify the Escrow Agent and hold it harmless without limitations from and against any loss, liability or expense of any nature incurred by the Escrow Agent arising out of or in connection with this Agreement or with the administration of its duties hereunder, including but not limited to legal fees and other costs and expenses of defending or preparing to defend against any claim or liability in the premises, unless such loss, liability or expense shall be caused by the Escrow Agent's willful misconduct or gross negligence. In no event shall the Escrow Agent be liable for indirect, special or consequential damages. The Company, the Shareholders and the Investors, jointly and severally, agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to payments from the Escrow Fund under this Agreement, and to indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent on any such payment or other activities under this Agreement. The Company, the Shareholders and the Investors undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. The Company, the Shareholders and the Investors, jointly and severally, agree to indemnify and hold the Escrow Agent harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees), interest and penalties. The Company agrees to pay or reimburse the Escrow Agent for any legal fees incurred in connection with the preparation of this Agreement and $2,000 annually thereafter, together to pay the Escrow Agent's reasonable compensation for its normal services hereunder in accordance with the fee schedule set forth in the letter attached hereto as EXHIBIT E. The Escrow Agent shall be entitled to reimbursement on demand for all reasonable expensesexpenses incurred in connection with the administration of the escrow created hereby which are in excess of its compensation for normal services hereunder, disbursements and advances including without limitation, payment of any legal fees incurred or made by the Escrow Agent in performance connection with resolutions of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid any claim by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent party hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 2 contracts
Sources: Escrow Agreement (Outsource International Inc), Securities Purchase Agreement (Outsource International Inc)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Escrow Company or the Trustee is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Escrow Company or the Trustee or an entity acting on its behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among of its duties hereunder.
(b) 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 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 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, Escrow Agent shall not be liable to any of the parties hereto except this Agreementor 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.
(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 in the absence of bad faith, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Escrow Company or Trustee or any entity acting on behalf of the Escrow Company and the Trustee, (ii) for any successor escrow agent) from and against one-half of any and all lossesindirect, liabilitiesconsequential, claims, actions, punitive or special damages, regardless of the form of action and expenseswhether or not any such damages were foreseeable or contemplated, including reasonable attorneys' fees and disbursements(iii) for the acts or omissions of its nominees, arising out of and in connection with this Agreement. Without limiting correspondents, designees, agents, subagents or subcustodians, (iv) for the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation, limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property Escrow Property, or any loss of interest or income incident to any such delays. This Section 5(c, or (v) shall survive notwithstanding any termination for an amount in excess of this Agreement or the resignation value of the Escrow AgentProperty, valued as of the date of deposit, but only to the extent of direct money damages.
(d) If any fees, reasonable out-of-pocket expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not paid within 10 Business Days after such expenses or costs are due, the Escrow Agent may reimburse itself therefor from the Escrow Property and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Property an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder.
(e) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Company, as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
(f) The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(g) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eh) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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 shall not be under any duty to give the Escrow 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 in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(j) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent bad faith, gross negligence or willful misconduct, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Escrow Company or the Trustee or is not in the form the Escrow Company and the Trustee sent or intended to send (whether due to fraud, distortion or otherwise). The Escrow Company and the Trustee shall indemnify the Escrow Agent against any loss, liability, claim or reasonable out-of-pocket expense (including reasonable out-of-pocket legal fees and expenses) it may incur with its acting in accordance with any such communication.
(k) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Escrow Company or the Trustee, which eliminates such ambiguity or uncertainty.
(l) In the event of any dispute between or conflicting claims among the Escrow Company, the Company and the Trustee and any successor escrow agent) may at other person or entity with respect to any time resign Escrow Property, 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 by delivering the Escrowed Property and Interestdispute or conflict shall continue, if any, to any successor escrow agent jointly designated by the Buyer and the Seller Escrow Agent shall not be or become liable in writing any way to the Escrow Company, the Company or the Trustee for failure or refusal to any comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to 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, whereupon which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall be discharged of have received security or an indemnity satisfactory to it sufficient to hold it harmless from and from against any and all further obligations arising in connection with this Agreementlosses which it may incur by reason of so acting. The resignation Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the Escrow Agent will take effect on rights of the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including parties by a court of competent jurisdiction) , and that the time for appeal from such order, judgment or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties heretodecree has expired without an appeal having been filed with such court. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the The Escrow Agent has not received shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The reasonable costs and reasonable out-of-pocket expenses (including attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed a designation of a successor escrow agentjoint and several obligation of, the Escrow Agent's sole responsibility after Company and the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoCompany.
(jm) 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 conclusively rely without any liability upon the contents thereof.
(kn) In The Escrow Agent does not have any interest in the event of any disagreement between the Buyer Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Escrow Company and the Seller resulting in adverse claims Company shall pay or demands being made reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrow Property incurred in connection with herewith and shall indemnify and hold harmless the Escrowed Property and Interest, if any, or Escrow Agent from any amounts that it is obligated to pay in the event way of such taxes. The Escrow Company shall be treated as the owner of the Escrow Property for U.S. federal income tax purposes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Escrow Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications. It is understood that the Escrow Agent in good faith is in doubt as shall only be responsible for income reporting with respect to what action it should take hereunder, income earned on the Escrow Agent shall be entitled to retain the Escrowed Property and Interest, if any, until will not be responsible for any other reporting. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agent shall have received Agent.
(io) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of provide to the Escrow Agent (as payment in full) for Company and the services Company monthly statements identifying transactions, transfers or holdings of Escrow Property and each such statement shall be deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be Company, the amount of $2,500 for Company and the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 Trustee unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize is notified in writing, by the Escrow AgentCompany, for the Company and the Trustee, to the contrary within thirty (30) Business Days of the date of such statement. The Escrow Company and Company acknowledge that regulations of the Comptroller of the Currency grant the parties the right to receive brokerage confirmations of the security transactions as they occur. The Escrow Company and Company specifically waive such notification to the extent permitted by law and will receive periodic cash transaction statements which will detail all investment transactions. Except as otherwise provided hereunder or agreed in writing among the parties hereto, Escrow Company shall retain the authority to institute, participate and join in any plan of reorganization, readjustment, merger or consolidation with respect to the issuer of any securities held hereunder, and, in general, to use the services of exercise each and every other power or right with respect to each such asset or investment as individuals generally have and enjoy with respect to their own assets and investment, including power to vote upon any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemsecurities.
Appears in 2 contracts
Sources: Escrow Agreement, Escrow Agreement (Cooper-Standard Holdings Inc.)
The Escrow Agent. To induce 2.5 The Escrow Agent shall invest the Settlement Amount deposited pursuant to ¶2.1 hereof in United States Agency or Treasury Securities or other instruments backed by the Full Faith & Credit of the United States Government or an Agency thereof, or fully insured by the United States Government or an Agency thereof and shall reinvest the proceeds of these instruments as they mature in similar instruments at their then-current market rates. All risks related to the investment of the Settlement Fund shall be borne by the Settlement Fund. The Released Persons shall have no responsibility for, interest in, or liability whatsoever with respect to the investment decisions or the actions of the Escrow Agent to act hereunderAgent, it is further agreed or any transactions executed by the Buyer and the Seller that:Escrow Agent.
(a) 2.6 The Escrow Agent shall not be under disburse the Settlement Fund, or any duty to give the 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 Escrowed Property held hereunder portion thereof, except as directed provided in this Agreement. Uninvested funds held hereunder shall not earn the Stipulation, by an order of the Court, or accrue interestwith the written agreement of Lead Counsel and the Settling Defendants’ Counsel.
(b2.7 Subject to further order(s) This Agreement expressly sets forth all and/or directions as may be made by the duties of Court, the Escrow Agent is authorized to execute such transactions as are consistent with the terms of the Stipulation. The Released Persons shall have no responsibility for, interest in, or liability whatsoever with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions actions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, or the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless monies maintained in the Escrow Agent (and Account, including, without limitation, any successor escrow agent) from and against one-half responsibility or liability related to any fees, Taxes, investment decisions, maintenance, supervision, or distributions of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out portion of and in connection with this Agreement. Without limiting the foregoing, Settlement Fund.
2.8 All funds held by the Escrow Agent shall be deemed and considered to be in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment custodia legis of the Escrowed Property or any loss of interest incident Court, and shall remain subject to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation jurisdiction of the Escrow Agent.
(d) The Escrow Agent Court, until such time as such funds shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act distributed pursuant to the advice Stipulation and/or further order(s) of counsel with respect the Court.
2.9 Notwithstanding the fact that the Effective Date has not yet occurred, Lead Counsel may pay from the Settlement Fund the Notice and Administration Expenses reasonably and actually incurred. If the Settlement is not approved by the Court or the Settlement is terminated, canceled, or the Effective Date otherwise does not occur, any money paid or incurred for the above purposes shall not be returned or repaid to any matter relating the Settling Defendants or their insurers. Subject to this Agreement ¶2.11 below, the Settling Defendants are not responsible for, and shall not be liable for for, any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in Notice and Administration Expenses, administering the Escrowed Property deposited hereunder but is serving as Settlement, and paying Taxes, Tax Expenses, and escrow holder only fees and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interestcosts, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be hereby accepts its obligations under any duty this Agreement, and represents that it has the power and legal authority to give the Escrowed Property enter into this Agreement and perform its obligations hereunder. The Escrow Agent further agrees that all property held by it the Escrow Agent hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrowed Property identified as being held hereunder except as directed in connection with this Agreement. Uninvested funds held hereunder shall not earn or accrue interestThe Escrow Agent agrees that its documents and records with respect to the transactions contemplated hereby will be available for examination by the Company and the Holder.
(b) This Agreement expressly sets forth all the duties of the The Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against entitled to receive from the Escrow AgentCompany reimbursement for any reasonable expenses incurred by it hereunder. The Escrow Agent shall not be bound have a lien upon, or any other right whatsoever to payment from, the property held hereunder by the provisions Escrow Agent, for or on account of any agreement among the other parties hereto except this Agreementsuch right to payment and reimbursement or otherwise.
(c) The Escrow Agent shall not be liable, have any duties or responsibilities hereunder except for its own gross negligence or willful misconduct and, except as expressly set forth herein. The Escrow Agent shall have no investment responsibility with respect to claims based upon such gross negligence funds or willful misconduct that are successfully asserted against the Escrow Agentother property held hereunder and shall have no responsibility for ascertaining or taking any action with respect to calls, the Buyer and the Seller shallconversions, severally and exchanges, maturities, tenders, or other matters relating to any property held by it hereunder, whether or not jointly, indemnify and hold harmless the Escrow Agent (and has or is deemed to have knowledge or notice of such matters, or taking any successor escrow agent) from and steps to preserve rights against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection parties with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident respect to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agentproperly held hereunder.
(d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument certificate, affidavit, letter, document or other writing delivered to it hereunder in accordance with communication that the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith believes to be genuine and to have been signed or sent by the proper party or parties, and may assume that any person purporting to give receipt rely on statements contained therein without further inquiry or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do soinvestigation.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination terms of this Agreement or the resignation Agreement, including without limitation, any release of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument Documents held by or delivered to it.
(h) it hereunder in accordance with Sections 1 and 3 of this Agreement. The Escrow Agent shall not be called upon liable for any other action or failure to advise any party as to the wisdom in selling act under 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of , except for its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoown willful misconduct.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kf) In the event of any disagreement between the Buyer Company and the Seller Holder, or any other person, resulting in an adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or in the event that the claim to Escrow Agent in good faith is in doubt as to what action it should take Documents held hereunder, the Escrow Agent shall be entitled at its option to retain refuse to comply with any such claim and shall not be liable for damages or interest to any such person or persons for its failure to comply with such adverse claims and the Escrowed Property Escrow Agent shall be entitled to continue to so refrain until:
(i) The rights of the adverse claimants shall have been finally adjudicated by a court of competent jurisdiction; or
(ii) All differences shall have been adjusted by agreement and Interest, if any, until the Escrow Agent shall have received (i) been notified thereof in a Final Determination (as defined in Section 3(b) and accompanied writing signed by all interested persons. In the opinion event of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interestsuch disagreement, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance its discretion may file a suit in interpleader for the purpose of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses having the respective rights of the Escrow Agent hereunder shall be paid by claimants of such funds or other property adjudicated.
(g) Notwithstanding anything contained herein to the Buyer. Any fees contrary, in the event of any dispute or expenses disagreement between the Company and the Holder regarding this Agreement or any of the Escrow Agent funds or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
, which dispute or disagreement is not settled or otherwise resolved within thirty (m30) No prospectuses, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent's name or the rights, powers, or duties days after written notice 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.
(n) The other parties hereto authorize dispute is delivered to the Escrow Agent, for any securities the Company may send written notice instructing the Escrow Agent to return the funds held hereunder, by it hereunder to use the services Holder pending the resolution of such dispute or disagreement. The Escrow Agent shall have no further obligation or responsibility with respect to the return of any United States central securities depository it deems appropriatesuch funds or property under this Section.
(h) The Company agrees to indemnify the Escrow Agent, and hold the Escrow Agent harmless, from and against any and all claims, costs, expenses, demands, judgments, losses, damages, and liabilities (including, but not limited towithout limitation, reasonable attorneys’ fees and expenses) arising out of or in connection with this Agreement, including without limitation any action brought by the Depository Trust Escrow Agent pursuant to Section 10(f) hereof, except such as may be caused by the willful misconduct of the Escrow Agent.
(i) The Escrow Agent may at any time resign by giving prior written notice of such resignation to the Company and the Federal Reserve Book Entry SystemHolder. The Escrow Agent shall not be discharged from its duties and obligations hereunder until a successor escrow agent shall have been designated by the Company and the Holder, and shall have executed and delivered an Escrow Agreement in substantially the form of this Agreement, and all property then held by the Escrow Agent hereunder shall have been delivered to such successor Escrow Agent.
Appears in 2 contracts
Sources: Securities Exchange Agreement (Cybra Corp), Securities Exchange Agreement (Cybra Corp)
The Escrow Agent. To induce the The Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller thatAgent:
(ai) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it act hereunder any greater degree of care than it gives its own similar property as an escrow agent only and shall not be required responsible or liable in any matter whatever 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 invest execute or deliver any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.thereof to the Escrow Agent;
(bii) This Agreement expressly sets forth all the duties of shall be fully protected in acting upon any written notice, instruction, direction, request or other communication, paper or document which the Escrow Agent with respect believes to be genuine, and shall have no duty to inquire into or investigate the validity, accuracy or content of any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent thereof;
(iii) shall not be bound by liable for any error of judgment or for any action taken, suffered or omitted to be taken except in the provisions case of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct andbad faith, except as determined by a final non-appealable order, judgment, decree or ruling of a court of competent jurisdiction. In no event shall the Escrow Agent be (A) liable for acting in accordance with respect a notice, instruction, direction, request or other communication, paper or document from the Company or the Investor Representative or (B) liable or responsible for special, punitive, indirect, consequential or incidental loss or damages of any kind whatsoever to claims based upon any person or entity (including without limitation lost profits), even if the Escrow Agent has been advised of the likelihood of such gross negligence loss or willful misconduct that are successfully asserted against damage. Any liability of the Escrow Agent under this Escrow Agreement will be limited to the amount of fees paid to the Escrow Agent;
(iv) may consult with and obtain advice from counsel (who may be counsel to a party hereto or an employee of the Escrow Agent) and shall be fully protected in taking, the Buyer and the Seller shallsuffering or omitting to take any action in reliance on said advice;
(v) shall have no duties, severally and not jointly, indemnify and hold harmless responsibilities or obligations as the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damagesexcept those which are expressly set forth herein, and expensesin any modification or amendment hereof to which the Escrow Agent has consented in writing, including reasonable attorneys' fees and disbursementsno duties, arising out of and in connection with this Agreementresponsibilities or obligations shall be implied or inferred. Without limiting the foregoing, the Escrow Agent shall not be subject to, nor be required to comply with, or determine if any person or entity has complied with, the Stock Purchase Agreement or any other agreement between or among the parties hereto, even though reference thereto may be made in no event this Escrow Agreement, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Escrow Agreement;
(vi) may execute or perform any duty, responsibility or obligation hereunder either directly or through agents, attorneys, accountants or other experts;
(vii) may engage or be liable interested in connection any financial or other transaction with the Company or any party hereto or affiliate thereof, and may act on, or 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;
(viii) shall not be obligated to expend or risk its investment own funds or reinvestment to take any action which it believes would expose it to expense or liability or to a risk of any cash held by incurring expense or liability, unless it hereunder in good faith, has been furnished with assurances of repayment or indemnity satisfactory to it;
(ix) shall not take instructions or directions except those given in accordance with the terms hereof, including without limitation, this Escrow Agreement;
(x) shall not incur any liability for not performing any delays (not resulting from its gross negligence act, duty, obligation or willful misconduct) in responsibility by reason of any occurrence beyond the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation control of the Escrow Agent.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
(dxi) 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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party person or entity as to the wisdom in selling or retaining or taking or refraining from any action investments with respect to any securities security, property or other property deposited hereunder.
(i) The Escrow Agent (and any successor funds held in escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent's name or the rightsdividends, powersdistributions, income, interest 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 theretoearnings thereon.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Curon Medical Inc), Stock Purchase Agreement (Curon Medical Inc)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred to or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Fund is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from the Fund or any entity acting on the Fund’s behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among of its duties hereunder.
(b) 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 Escrow 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 Escrow 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, Escrow Agent shall not be liable to any of the parties hereto except this Agreementor 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.
(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 or willful misconduct andon its part, except as such is proved in a court or tribunal of competent jurisdiction. In no event shall the Escrow Agent be liable (i) for acting in accordance with respect to claims based or conclusively relying upon any instruction, notice, demand, certificate or document from the Fund or any entity acting on behalf of the Fund, (ii) for any indirect, cumulative, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated unless such damages arise from the gross negligence, intentional acts, or willful misconduct of the Escrow Agent, or (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, unless the Escrow Agent’s selection of such nominees, correspondents, designees, agents, subagents or subcustodians of the Escrow Agent involves gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation on part of the Escrow Agent.
(d) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Funds and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Funds for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Funds an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder.
(e) The Escrow Agent may consult with legal counsel of its own choosing as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
(f) The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(g) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eh) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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 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. Uninvested funds held hereunder shall not earn or accrue interest.
(and any successor escrow agentj) may at At any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged may request an instruction in writing, in English from the Fund and may, at its own option, include in such request the course of action it proposes to take and from the date on which it proposes to act, regarding any and all further obligations matter arising in connection with this Agreementits duties and obligations hereunder. The resignation of Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the Escrow Agent will take effect on the date sends such request for instructions and its proposed course of action to Fund by fax or electronic mail (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdictionreceipt confirmed) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation by overnight courier, and provided further that, prior to the other parties hereto. Upon the appointment of a successor escrow agentso acting, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation the written instructions from the Fund to refrain from taking the proposed action.
(k) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of a successor escrow agentsecurities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent's sole responsibility after , absent gross negligence as proved in a court or tribunal of competent jurisdiction, shall not be responsible or liable in the Resignation Date event such communication is not an authorized or authentic communication of the Fund or is not in the form the Fund sent or intended to send (whether due to fraud, distortion or otherwise). The Fund shall be to safekeep indemnify the Escrowed Property Escrow Agent against any loss, liability, claim or expense (including legal fees and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoexpenses) it may incur with its acting in accordance with any such communication.
(jl) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Funds. The Escrow Agent may, but is not obligated to, inform the Fund in writing of the ambiguity. If the Fund provides the Escrow Agent with written instructions which eliminates such ambiguity or uncertainty, the Escrow Agent shall comply with such written instructions.
(m) In the event of any dispute between or conflicting claims among the Fund and any other person or entity with respect to any Escrow Funds, 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 Funds so long as such dispute or conflict shall continue, and the Escrow Agent shall not be or become liable in any way to the Fund or any other person for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to 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 satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Escrow Agent shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed an obligation of, the Fund.
(n) 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 conclusively rely without any liability upon the contents thereof.
(ko) In the event of The Escrow Agent does not have any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or interest in the event that Escrow Funds deposited hereunder but is serving as escrow holder only and having only possession thereof. The Fund shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrow Funds incurred in good faith connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in doubt the way of such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Fund will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. This paragraph shall survive notwithstanding any termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(p) The Escrow Agent shall provide to the Fund monthly statements identifying transactions, transfers or holdings of Escrow Funds and each such statement shall be deemed to be correct and final upon receipt thereof by the Fund unless the Escrow Agent is notified in writing, by the Fund, to the contrary within thirty (30) business days of the date of such statement.
(q) The Fund shall deliver to the Escrow Agent a list of authorized signatories, as set forth in the attached Schedule 2 hereto, with respect to what action it should take any notice, certificate, instrument, demand, request, direction, instruction, waiver, receipt, consent or other document or communication required or permitted to be furnished to the Escrow Agent hereunder, and the Escrow Agent shall be entitled to retain the Escrowed Property and Interest, if any, rely on such list with respect to any party until a new list is furnished by such party to the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if anyAgent. Furthermore, in which the event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, funds transfer instructions are given (other than in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer writing at the time of execution of this Agreement Agreement), whether in writing, by fax or otherwise, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on Schedule 3 hereto, and $2,000 annually thereafter, together with reimbursement the Escrow Agent may rely upon the confirmations of anyone purporting to be the person or persons so designated. The persons and telephone numbers designated for all reasonable expenses, disbursements and advances incurred or made such call-backs may be changed only in a writing actually received by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunderAgent.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 2 contracts
Sources: Escrow Agreement (MA Managed Futures Fund, LP), Escrow Agreement (MA Managed Futures Fund, LP)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Company or the Dealer Manager is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Company, the Dealer Manager or an entity acting on its behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among of its duties hereunder.
(b) 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 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 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, Escrow Agent shall not be liable to any of the parties hereto except this Agreementor 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.
(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 or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless on its part. In no event shall the Escrow Agent be liable (and i) for acting in accordance with or conclusively relying upon any successor escrow agentinstruction, notice, demand, certificate or document from the Company, the Dealer Manager, or any entity acting on behalf of the Company, (ii) from and against one-half of for any and all lossesindirect, liabilitiesconsequential, claims, actions, punitive or special damages, and expensesmultiple damages under M.G.L. c. 93A or any other authority, including reasonable attorneys' damages for lost profits, damages for emotional distress, or attorney’s fees and disbursementscosts, arising out all regardless of the form of action and in connection with this Agreement. Without limiting whether or not any such damages were foreseeable or contemplated, (iii) for the foregoingacts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, (iv) for the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation, limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property Escrow Property, or any loss of interest or income incident to any such delays, or (v) for an amount in excess of the value of the Escrow Property, valued as of the date of deposit, but only to the extent of direct money damages. This Section 5(c) The provisions of this subsection shall survive notwithstanding any the termination of this Agreement or the earlier resignation or removal of the Escrow Agent.
(d) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not paid within fifteen (15) calendar days of when they are due, the Escrow Agent may reimburse itself therefor from the Escrow Property and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Property an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder.
(e) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Company as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel. Reliance on such advice of counsel shall not effect or be deemed to be a waiver of the Escrow Agent’s attorney-client privilege or any other applicable privilege or protection.
(f) The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism, the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility, or any computer or other technological malfunction).
(g) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eh) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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 shall not be under any duty to give the Escrow 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 in this Agreement.
(j) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent its own gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Company or the Dealer Manager or is not in the form the Company or the Dealer Manager sent or intended to send (whether due to fraud, distortion or otherwise). The Company shall indemnify the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may incur with its acting in accordance with any such communication.
(k) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Company which eliminates such ambiguity or uncertainty.
(l) In the event of any dispute between or conflicting claims among the Company and any successor escrow agent) may at other person or entity with respect to any time resign Escrow Property, 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 for so long as such by delivering dispute or conflict shall continue, and the Escrowed Property and InterestEscrow Agent shall not be or become liable in any way to the Company or any other person for failure or refusal to comply with such conflicting claims, if anydemands or instructions. The Escrow Agent shall be entitled to refuse to act until, to any successor escrow agent jointly designated its sole satisfaction, either (i) such conflicting or adverse claims or demands shall have been determined by the Buyer and the Seller in writing a final order, judgment or to any decree of a court of competent jurisdiction, whereupon which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall be discharged of have received security or an indemnity satisfactory to it sufficient to hold it harmless from and from against any and all further obligations arising in connection with this Agreementlosses which it may incur by reason of so acting. The resignation of Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent will take in its sole discretion, to the effect on that said order, judgment or decree represents a final adjudication of the date (rights of the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including parties by a court of competent jurisdiction) , and that the time for appeal from such order, judgment or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties heretodecree has expired without an appeal having been filed with such court. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the The Escrow Agent has not received a designation of a successor escrow agentmay act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed an obligation of, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoCompany.
(jm) 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 conclusively rely without any liability upon the contents thereof.
(kn) In the event of The Escrow Agent does not have any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or interest in the event that Escrow Property deposited hereunder but is serving as escrow holder only and 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 good faith is in doubt as to what action it should take hereunder, connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from this Escrow Account shall be entitled subject to retain withholding regulations then in force with respect to United States taxes. The Company or the Escrowed Property and Interest, if any, until Dealer Manager will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. This paragraph shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by survive notwithstanding any termination of this Agreement or the opinion of counsel referred to in Section 3(b)) directing delivery resignation or removal of the Escrowed Property and Interest, if any, or Escrow Agent.
(iio) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on provide to the Company and the Dealer Manager monthly statements identifying transactions, transfers or holdings of Escrow Property and each such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services statement shall be deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be Company and the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 Dealer Manager unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize is notified in writing, by the Escrow Agent, for any securities held hereunderCompany or the Dealer Manager, to use the services contrary within thirty (30) business days of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemdate of such statement.
Appears in 2 contracts
Sources: Subscription Escrow Agreement (American Realty Capital Trust, Inc.), Subscription Escrow Agreement (American Realty Capital Trust, Inc.)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property duties, responsibilities and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties 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 Agreement inferred or implied against the Escrow Agent. The Escrow Agent (in its capacity as such) shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Company is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Company; provided that nothing herein shall affect the Trustee’s rights and obligations under the Indenture. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among of its duties hereunder.
(b) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree or writ 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 reasonable manner advised by its legal counsel; 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 or writ may be subsequently modified or vacated or otherwise determined to have been without legal force or effect, except this Agreementto the extent that any such order, judgment, decree or writ or the effect of any interpretation the foregoing is due to the Escrow Agent’s gross negligence or willful misconduct.
(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 or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless on its part. In no event shall the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, (i) for acting in accordance with or conclusively relying upon any written instruction, notice, demand, certificate or document from the terms hereofCompany, including without limitation, any liability (ii) for any delays indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated, or (not resulting from its gross negligence or willful misconductiii) for an amount in the investment or reinvestment excess of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow AgentFunds.
(d) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Company, as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith reliance upon any advice from such counsel.
(e) The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or other wire or communication facility).
(f) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder that is believed by the Escrow Agent in accordance with good faith to be genuine and to be signed or presented by the terms hereof proper person without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(ih) The Escrow Agent (shall not be under any duty to give the Escrow 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 successor escrow agent) may at any time resign funds held hereunder, except as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated specifically directed by the Buyer and the Seller Company in writing writing. Uninvested funds held hereunder shall not earn or to any court of competent jurisdiction, whereupon accrue interest.
(i) When the Escrow Agent shall be discharged acts on any information, instructions or communications (including, but not limited to, communications with respect to the delivery of and from any and all further obligations arising in connection with this Agreement. The resignation securities or the wire transfer of funds) sent by facsimile, email or other form of electronic or data transmission, that are believed by the Escrow Agent will take effect on in good faith to be genuine and to be signed or presented by the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agentproper person, the Escrow Agent's sole responsibility after , absent gross negligence or willful misconduct, shall not be responsible or liable in the Resignation Date shall be event such communication is not an authorized or authentic communication of the Company or is not in the form the Company sent or intended to safekeep the Escrowed Property and Interestsend (whether due to fraud, if any, until receipt of a designation of successor escrow agent distortion or a joint written disposition instruction by the other parties heretootherwise).
(j) The In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent shall have no responsibility for hereunder, the contents Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereofEscrow Property, unless the Escrow Agent receives written instructions, signed by the Company, which eliminates such ambiguity or uncertainty.
(k) In the event of any disagreement dispute between or conflicting claims among the Buyer Company and the Seller resulting in adverse claims any other person or demands being made in connection entity with the Escrowed Property and Interest, if any, or in the event that the respect to any 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 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 or settled by agreement between the Escrowed Property and Interest, if any, until conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) security or an indemnity satisfactory to it sufficient to hold it harmless from and accompanied against any and all losses which it may incur by the opinion reason of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreementso acting. The Escrow Agent shall act on such Final Determination or agreement court order without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by the Company.
(l) The compensation of Escrow Agent does not have any interest in the Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Company shall pay or reimburse the Escrow Agent (as payment upon request for any transfer taxes or other taxes relating to the Escrow Property incurred in full) for the services to be rendered by connection herewith and shall indemnify and hold harmless the Escrow Agent hereunder from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from this Escrow Account shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together subject to withholding regulations then in force with reimbursement for all reasonable expenses, disbursements and advances incurred or made by respect to United States taxes. The Company will provide the Escrow Agent in performance of its duties hereunder (including reasonable feeswith appropriate W-9 forms for tax identification number certifications, expenses and disbursements of its counsel)or W-8 forms for non-resident alien certifications. All fees and expenses of It is understood that the Escrow Agent hereunder shall only be paid by the Buyer. Any fees or expenses of responsible for income reporting with respect to income earned on the Escrow Agent or its counsel which are Property (to be attributed to the Company), if any, and will not paid as provided be responsible for herein may be taken from any property held by the Escrow Agent hereunderother reporting.
(m) No prospectuses, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent's name or the rights, powers, or duties of the The Escrow Agent shall provide to the Company monthly statements identifying transactions, transfers or holdings of Escrow Property and each such statement shall be issued deemed to be correct and final upon receipt thereof by the other parties hereto or on such parties' behalf Company unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize is notified in writing, by the Escrow Agent, for any securities held hereunderCompany, to use the services contrary within thirty (30) Business Days of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemdate of such statement.
Appears in 1 contract
Sources: Escrow Agreement (KLX Inc.)
The Escrow Agent. To induce the (1) The Escrow Agent undertakes to act hereunderperform only such duties as are expressly set forth herein.
(2) The Escrow Agent may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it is further agreed hereunder and reasonably believed by it to be genuine and to have been signed or presented by the Buyer and the Seller that:proper party or parties.
(a3) The Escrow Agent shall not be under liable for any duty action taken by it in good faith and reasonably believed by it to give be authorized or within the Escrowed Property held rights or powers conferred upon it by this Escrow Agreement, and may consult with counsel of its own choice 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.
(4) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any greater degree party hereto which, in its opinion, conflict with any of care than the provisions of this Escrow Agreement, it gives shall be entitled to refrain from taking any action and its own similar sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by all of the other parties hereto or by a final order or judgment of a court of competent jurisdiction.
(5) The Escrow Agent may resign and be discharged from its duties or obligations hereunder by giving notice in writing of such resignation specifying a date upon which such resignation shall take effect, which date shall not be required less than sixty (60) days prior to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder the date such notice is given and provided that such resignation shall not earn or accrue interesttake effect until a successor Escrow Agent shall have been appointed jointly by Hubb▇▇▇ ▇▇▇ the Shareholder Representative.
(b6) 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 agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent Agreement and shall not be liable, except for its own gross negligence or willful misconduct and, except with respect deemed to claims based upon such gross negligence or willful misconduct that are successfully asserted against have knowledge of nor responsibility under the Escrow Agent, terms of the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Merger Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent shall be entitled under no duty to rely in good faith upon any order, judgment, certification, demand, notice, instrument inquire into or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to investigate the validity, value, genuineness accuracy or the collectability content of any security or other document or instrument held by or delivered to itsuch document.
(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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Merger Agreement (Hubbell Inc)
The Escrow Agent. To induce 4.1 In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent to will act hereunderhonestly and in good faith and will exercise that degree of care, it is further agreed by the Buyer diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
4.2 The Purchaser and the Seller that:Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof.
(a) 4.3 In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings.
4.4 The Escrow Agent shall not be under any will have no responsibility in respect of loss of the Subscription Proceeds except the duty to give exercise such care in the Escrowed Property held by safekeeping thereof as it hereunder any greater degree of care than it gives its own similar property and shall not be required would exercise if the Subscription Proceeds belonged to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel.
4.5 The Escrow Agent will not be bound in any way by any contract between the provisions of any agreement among the other parties hereto except this Agreement.
(c) whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent shall will not be liablerequired to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, except signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent.
4.6 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its own gross negligence attention.
4.7 In the event that the Subscription Proceeds are attached, garnished or willful misconduct andlevied upon under any court order, except with respect to claims based upon or if the delivery of such gross negligence property is stayed or willful misconduct that are successfully asserted against enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Buyer Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the Seller shall, severally and not jointly, indemnify and hold harmless contrary. If the Escrow Agent (obeys and complies with any successor escrow agent) from and against one-half such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any and all lossesother person, liabilitiesfirm or corporation by reason of such compliance, claimsnotwithstanding that such writs, actionsorders, damagesjudgments or decrees may be subsequently reversed, and expensesmodified, including reasonable attorneys' fees and disbursementsannulled, arising out of and in connection with this Agreement. Without limiting the foregoingset aside or vacated.
4.8 Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall in no event not be liable in connection with its investment or reinvestment of by reason thereof to any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property parties hereto or any loss of interest incident to any other person, firm, association or corporation, even if thereafter any such delaysorder, judgment or decree may be reversed, modified, annulled, set aside or vacated.
4.9 If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto.
4.10 The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. This Section 5(cThe Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) shall days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to the Escrow Agent will survive notwithstanding any the termination of this Agreement or the resignation or termination of the Escrow Agent.
(d) The Escrow Agent shall be entitled 4.11 Notwithstanding anything herein to rely in good faith upon any orderthe contrary, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed written instructions given by it in good faith to be genuine the Company and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do soPurchaser jointly.
(e) The 4.12 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent may act pursuant in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be an effective discharge to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b3(a) and accompanied by the opinion of counsel referred to in Section 3(b3(a)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Stock Purchase Agreement (Daisytek International Corporation /De/)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred to or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Fund is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from the Fund or any entity acting on the Fund's behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among of its duties hereunder.
(b) 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 Escrow 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 Escrow 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, Escrow Agent shall not be liable to any of the parties hereto except this Agreementor 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.
(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 or willful misconduct andon its part, except as such is proved in a court or tribunal of competent jurisdiction. In no event shall the Escrow Agent be liable (i) for acting in accordance with respect to claims based or conclusively relying upon any instruction, notice, demand, certificate or document from the Fund or any entity acting on behalf of the Fund, (ii) for any indirect, cumulative, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated unless such damages arise from the gross negligence, intentional acts, or willful misconduct of the Escrow Agent, or (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, unless the Escrow Agent's selection of such nominees, correspondents, designees, agents, subagents or subcustodians of the Escrow Agent involves gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation on part of the Escrow Agent.
(d) The Escrow Agent may consult with legal counsel of its own choosing as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
(e) The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(f) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to shall not be responsible in any respect for the form, execution, validity, valuevalue or genuineness of documents or securities deposited hereunder, genuineness or for any description therein, or for the collectability identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such document, security or other document 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.
(ih) 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. Uninvested funds held hereunder shall not earn or accrue interest.
(and any successor escrow agenti) may at At any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged may request an instruction in writing, in English from the Fund and may, at its own option, include in such request the course of action it proposes to take and from the date on which it proposes to act, regarding any and all further obligations matter arising in connection with this Agreementits duties and obligations hereunder. The resignation of Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the Escrow Agent will take effect on the date sends such request for instructions and its proposed course of action to Fund by fax or electronic mail (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdictionreceipt confirmed) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation by overnight courier, and provided further that, prior to the other parties hereto. Upon the appointment of a successor escrow agentso acting, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation the written instructions from the Fund to refrain from taking the proposed action.
(j) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of a successor escrow agentsecurities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent's sole responsibility after , absent gross negligence as proved in a court or tribunal of competent jurisdiction, shall not be responsible or liable in the Resignation Date event such communication is not an authorized or authentic communication of the Fund or is not in the form the Fund sent or intended to send (whether due to fraud, distortion or otherwise). The Fund shall be to safekeep indemnify the Escrowed Property Escrow Agent against any loss, liability, claim or expense (including legal fees and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoexpenses) it may incur with its acting in accordance with any such communication.
(jk) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Funds. The Escrow Agent may, but is not obligated to, inform the Fund in writing of the ambiguity. If the Fund provides the Escrow Agent with written instructions which eliminates such ambiguity or uncertainty, the Escrow Agent shall comply with such written instructions.
(l) In the event of any dispute between or conflicting claims among the Fund and any other person or entity with respect to any Escrow Funds, 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 Funds so long as such dispute or conflict shall continue, and the Escrow Agent shall not be or become liable in any way to the Fund or any other person for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to 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 satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Escrow Agent shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys' fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed an obligation of, the Fund.
(m) 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 conclusively rely without any liability upon the contents thereof.
(kn) In the event of The Escrow Agent does not have any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or interest in the event that Escrow Funds deposited hereunder but is serving as escrow holder only and having only possession thereof. The Fund shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrow Funds incurred in good faith connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in doubt the way of such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Fund will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. This paragraph shall survive notwithstanding any termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(o) The Escrow Agent shall provide to the Fund monthly statements identifying transactions, transfers or holdings of Escrow Funds and each such statement shall be deemed to be correct and final upon receipt thereof by the Fund unless the Escrow Agent is notified in writing, by the Fund, to the contrary within thirty (30) business days of the date of such statement.
(p) The Fund shall deliver to the Escrow Agent a list of authorized signatories, as set forth in the attached Schedule 2 hereto, with respect to what action it should take any notice, certificate, instrument, demand, request, direction, instruction, waiver, receipt, consent or other document or communication required or permitted to be furnished to the Escrow Agent hereunder, and the Escrow Agent shall be entitled to retain the Escrowed Property and Interest, if any, rely on such list with respect to any party until a new list is furnished by such party to the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if anyAgent. Furthermore, in which the event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, funds transfer instructions are given (other than in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer writing at the time of execution of this Agreement Agreement), whether in writing, by fax or otherwise, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on Schedule 3 hereto, and $2,000 annually thereafter, together with reimbursement the Escrow Agent may rely upon the confirmations of anyone purporting to be the person or persons so designated. The persons and telephone numbers designated for all reasonable expenses, disbursements and advances incurred or made such call-backs may be changed only in a writing actually received by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunderAgent.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer 7.1 The parties acknowledge and the Seller agree that:
(a) The the duties and obligations of the Escrow Agent shall be determined solely by the provisions of this Agreement and, accordingly, the Escrow Agent shall not be under any duty to give responsible except for the Escrowed Property held by it hereunder any greater degree P a g e | 5 performance of care than it gives its own similar property such duties and shall not be required to invest any Escrowed Property held hereunder except obligations as directed the Escrow Agent has undertaken in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.;
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound responsible for any error in judgement or for any act done or step taken or omitted to be taken by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liablein good faith or for any mistake, in fact or law, or for anything which the Escrow Agent may do or refrain from doing in connection with this Agreement except for its arising out of the Escrow Agent’s own gross negligence or willful misconduct and, except with respect misconduct;
(c) if there is any question as to claims based upon such gross negligence any of the provisions of this Agreement or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with ’s duties under this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection have the right to consult with its investment or reinvestment of any cash held and obtain advice from legal counsel appointed 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The , who may but need not be legal counsel for any of the parties to this Agreement, and 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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement incur no responsibility and shall not be liable for any action taken or omitted fully protected in acting in good faith in accordance with any opinion or instruction of such advice.counsel; the Corporation shall pay the reasonable fees, expenses and disbursements of any such counsel so retained by the Escrow Agent;
(d) the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 20 days’ advance notice to the Corporation and the Securityholders;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, the Escrow Agent is to deliver to such successor certificates representing the Escrowed Shares then in its possession upon payment by the Corporation of the Escrow Agent’s outstanding fees and expenses, if any);
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon required to advise make any party as to the wisdom in selling determination or retaining or taking or refraining from any action decision with respect to the validity of any securities claim made by any party or other property deposited hereunder.of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement;
(ig) The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which there is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller parties to this Agreement resulting in adverse claims or demands being made in connection with respect to the Escrowed Property Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and Interestin so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Securityholders for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if anythere is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, are in or appear to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall by direction of the Corporation or the Securityholders, deposit the P a g e | 6 Escrowed Shares or any part thereof then in the event that Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and Securityholders (as the case may be) shall indemnify the Escrow Agent in good faith is any such action, interpleader or any other action or proceeding for all costs, expenses and fees in doubt its capacity as to what escrow agent in connection with any deposit or any action it should take hereunder, brought in connection with this Agreement;
(i) the Securityholders and the Corporation acknowledge and agree that the Escrow Agent shall be entitled to retain the Escrowed Property and Interest, if any, until represent itself in connection with any legal actions taken in connection with this Agreement; and
(j) upon the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing Agent’s delivery of the Escrowed Property and InterestShares, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect to the Escrowed Shares, other parties hereto or on than obligations existing as of the date of such parties' behalf unless delivery of the Escrow Agent shall first have given its specific written consent theretoEscrowed Shares.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the Any annual fees, or other expenses, due to Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree in connection with its performance of care than it gives its own similar property and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agentpaid by one half by Seller and one-half by Purchaser. The Escrow Agent shall not be bound by the provisions of liable for any agreement among the other parties hereto except act or omission to act under this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreementmisconduct. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent may decline to act and shall not be entitled liable for failure to rely act if in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered doubt as to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofits duties under this Agreement. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt any notice or advice or make any statement or execute any document in connection with the provisions hereof instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so.
(e) . The Escrow Agent may act pursuant to the advice of counsel Agent's duties shall be determined only with respect to any matter relating reference to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only applicable laws, and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for charged with knowledge of or any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement duties or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 responsibilities in connection with this Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the any other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination document or agreement. The Escrow Agent shall act on have the right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at least thirty (30) days prior to the date specified for such Final Determination or agreement without further question.
resignation to take effect. If the parties hereto do not designate a successor escrow agent within said third (l30) The compensation of days, the Escrow Agent (may appoint another nationally recognized bank or trust company as payment successor escrow agent. Upon the effective date of such resignation, and provided that the successor escrow agent agrees in full) for the services writing to be rendered bound by the terms hereof, all cash and other payments and all other property then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in writing by both Seller and Purchaser. In the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by event that the Escrow Agent in performance of its duties hereunder (including reasonable feesshould at any time be confronted with inconsistent or conflicting claims or demands by the parties hereto, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by have the Buyer. Any fees or expenses right to interplead said parties in any court of competent jurisdiction and request that such court determine such respective rights of the parties with respect to this Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectusesAgreement, press releasesand upon doing so, reports and promotional material or other similar 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 released from any obligations or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, liability to use the services either party as a consequence of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemsuch claims or demands.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Real Estate Income Trust, Inc.)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Company or Dalmore is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Company or Dalmore or an entity acting on its behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among of its duties hereunder.
(b) 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 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 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, Escrow Agent shall not be liable to any of the parties hereto except this Agreementor 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.
(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 or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against on its part. In no event shall the Escrow AgentAgent be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Company and Dalmore or any entity acting on behalf of the Company or Dalmore, (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, (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, or (iv) for an amount in excess of the value of the Escrow Property, valued as of the date of deposit, but only to the extent of direct money damages.
(d) If any fees, expenses or costs incurred by, or any obligations owed to, the Buyer Escrow Agent hereunder are not promptly paid within thirty (30) days after an invoice has been rendered, the Escrow Agent may reimburse itself therefor from the Escrow Property, not to exceed one thousand dollars ($1,000) per year.
(e) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Company and Dalmore, as to any matter relating to this Agreement, and the Seller shallEscrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
(f) The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, severally and not jointly, indemnify and hold harmless obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (and including but not limited to any successor escrow agent) from and against one-half act or provision of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment present or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitationfuture law or regulation or governmental authority, any liability for act of God or war, civil unrest, local or national disturbance or disaster, any delays (not resulting from its gross negligence act of terrorism, or willful misconduct) in the investment or reinvestment unavailability of the Escrowed Property Federal Reserve Bank wire or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement facsimile or the resignation of the Escrow Agentother wire or communication facility).
(dg) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eh) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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 shall not be under any duty to give the Escrow 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. Uninvested funds held hereunder shall not earn or accrue interest.
(j) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Company or is not in the form the Company sent or intended to send (whether due to fraud, distortion or otherwise). The Company and Dalmore shall indemnify the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may incur with its acting in accordance with any such communication.
(k) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by an authorized representative of the Company, which eliminates such ambiguity or uncertainty.
(l) In the event of any dispute between or conflicting claims among the Company and Dalmore and any successor escrow agent) may at other person or entity with respect to any time resign Escrow Property, 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 by delivering the Escrowed Property and Interestdispute or conflict shall continue, if any, to any successor escrow agent jointly designated by the Buyer and the Seller Escrow Agent shall not be or become liable in writing any way to the Company and Dalmore for failure or refusal to any comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to 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, whereupon which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall be discharged of have received security or an indemnity satisfactory to it sufficient to hold it harmless from and from against any and all further obligations arising in connection with this Agreementlosses which it may incur by reason of so acting. The resignation Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the Escrow Agent will take effect on rights of the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including parties by a court of competent jurisdiction) , and that the time for appeal from such order, judgment or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties heretodecree has expired without an appeal having been filed with such court. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the The Escrow Agent has not received shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed a designation of a successor escrow agentjoint and several obligation of, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property Company and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoDalmore.
(jm) 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 conclusively rely without any liability upon the contents thereof.
(kn) In The Escrow Agent does not have any interest in the event of Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Company and Dalmore shall pay or reimburse the Escrow Agent upon request for any disagreement between transfer taxes or other taxes relating to the Buyer and the Seller resulting in adverse claims or demands being made 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 way of such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company and Dalmore will provide the Escrowed Property and InterestEscrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. It is understood that the Escrow Agent shall only be responsible for income reporting with respect to income earned on the Escrow Property, if any, and will not be responsible for any other reporting. This paragraph shall survive notwithstanding any termination of this Agreement or in the event that resignation or removal of 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received Agent.
(io) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on provide to the Company and Dalmore monthly statements identifying expenses, fees, transactions, transfers or holdings of Escrow Property and each such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services statement shall be deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement Company and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 Dalmore unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize is notified in writing, by the Escrow Agent, for any securities held hereunderCompany and Dalmore, to use the services contrary within thirty (30) business days of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemdate of such statement.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent hereunder shall be ▇▇▇▇ Marks & ▇▇▇▇▇ LLP as escrow agent. If the Closing takes place in accordance with the terms hereof, the Deposit shall be paid to Seller and Purchaser shall receive credit for the entire amount thereof. If for any reason the Closing does not be under any duty occur in accordance with the terms hereof and either party makes a written demand upon the Escrow Agent for payment of the Deposit, the Escrow Agent shall give written notice to give the Escrowed Property held other party of such demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment or delivery within seven (7) business days after the giving of such notice, the Escrow Agent is hereby authorized to make such delivery to the party requesting payment. If the Escrow Agent receives written objection within such seven (7) day period with respect to a request to deliver the Deposit, the Escrow Agent shall continue to hold the same until otherwise directed by it hereunder any greater degree joint written instructions from the parties to this Contract or a final judgment of care than it gives its own similar property and shall not be required to invest any Escrowed Property held hereunder court of competent jurisdiction, except as directed otherwise provided below. In the event of a good faith dispute as to the payment of the Deposit and subsequently legal proceedings are commenced, if the party which objected to the payment of the Deposit is the losing party, then such party shall be responsible to pay or reimburse the prevailing party (after judicial determination) for all costs and expenses incurred in this Agreement. Uninvested funds held hereunder shall not earn or accrue interestconnection with such proceeding.
(b) This Agreement expressly sets forth all the duties of The parties acknowledge that the Escrow Agent with respect to any is holding the Deposit solely as a stakeholder at their request and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against for their convenience, that the Escrow Agent. The Agent acting in such capacity shall not be deemed to be the agent of either of the parties, and that the Escrow Agent shall not be bound by liable to either of the provisions of parties for any agreement among the other parties hereto except this Agreementact or omission on its part unless taken in, or resulting from, its willful misconduct, or gross negligence.
(c) The Escrow Agent shall not be liablebound by any modification, except for its own gross negligence amendment, termination, cancellation or willful misconduct rescission of this Contract unless the same shall be in writing and signed by all of the other parties hereto and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the if its duties as Escrow Agent (and any successor escrow agent) from and against one-half of any and all losseshereunder are affected thereby, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent unless it shall in no event be liable in connection with have given its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agentprior written consent thereto.
(d) The Escrow Agent shall be entitled to rely conclusively and shall be protected in good faith acting upon any order, judgment, certification, demand, notice, instrument instrument, opinion or written advice of counsel (including counsel chosen by the Escrow Agent) or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature 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 receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Without limiting the generality of the foregoing, it is agreed and understood that Escrow Agent may act pursuant upon its receipt of a Termination Notice (as hereinafter defined) without any obligation whatsoever to inquire as to the advice of counsel with respect factual circumstances under which the same was delivered to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such adviceit.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur ofmay: (i) be discharged by the date giving to it of a successor is appointed written notice of termination signed by Seller and Purchaser (including a court of competent jurisdiction"TERMINATION NOTICE") or (ii) the date which is 30 days after the date of delivery of its resign hereunder by giving written notice of its resignation to the other parties hereto. Upon the appointment of a successor escrow agent, in either case such successor escrow agent shall deliver written discharge or resignation notice to be given at least ten (10) business days prior to the Buyer date specified for such discharge or resignation to take effect, and upon the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agenteffective date thereof, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and InterestDeposit, if anytogether with all interest accrued thereon, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered then held by the Escrow Agent hereunder shall be delivered by it to any title company licensed to do business in New York State or a successor law firm maintaining an Escrow Account in New York State as may be designated in writing by Seller and subject to the amount consent of $2,500 Purchaser which consent will not be unreasonably withheld or delayed, whereupon all the Escrow Agent's obligations hereunder shall cease and terminate. If no such person shall have been designated by such date, the withdrawing Escrow Agent may petition any court of competent jurisdiction located in the State of New York for the initial year paid by appointment of a successor Escrow Agent; provided, however, Escrow Agent shall continue to hold the Buyer at the time of execution of this Agreement and $2,000 annually thereafterDeposit, together with reimbursement for all reasonable expensesinterest accrued thereon, disbursements and advances incurred or made by in accordance herewith until a successor is appointed. Such court may thereupon, after such notice, if any, as it may deem proper, appoint a successor Escrow Agent. If no new Escrow Agent is so appointed within (30) days following such petition, the Escrow Agent may deposit the Deposit, together with all interest accrued thereon, with any court it reasonably deems appropriate, whereupon it shall be relieved of all further obligations hereunder. Any successor Escrow Agent appointed as provided in performance of its duties hereunder (including reasonable feesthis Section shall execute and deliver to the parties hereto an instrument in writing accepting such appointment hereunder, expenses and disbursements of its counsel). All fees and expenses thereupon the withdrawal of the predecessor Escrow Agent hereunder shall become effective and all obligations of the predecessor Escrow Agent shall cease and terminate. The sole responsibility of the predecessor Escrow Agent shall be paid by to deliver the BuyerDeposit, together with all interest accrued thereon, to such successor Escrow Agent. Any fees or expenses For all purposes of this Escrow Agreement, the Escrow Agent or term "ESCROW AGENT " shall mean and, subject to the provisions of this Section, shall also include its counsel which are not paid successors and assigns as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce The reasonable fees and expenses of the Escrow ---------------- Agent in connection with its execution and performance of this Escrow Agreement as set forth on Exhibit B hereto shall be borne by Premiere and the Stockholders --------- equally. The Escrow Agent shall be entitled to such rights and shall perform such duties of the Escrow Agent as set forth herein, including but not limited to act hereunderthe following (collectively, it is further agreed by the Buyer and the Seller that:"Duties"):
(a) The Escrow Agent shall hold and safeguard the Escrow during the Escrow Period, shall treat such Escrow as an escrow fund in accordance with the terms of this Escrow Agreement and not be under any duty to give as the Escrowed Property held by it hereunder any greater degree property of care than it gives its own similar property Premiere, and shall not be required to invest any Escrowed Property held hereunder except as directed hold and dispose of the Escrow only in accordance with the terms of this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant distribute to the advice of counsel with respect to any matter Stockholders all material relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half a vote of any transfer taxes or other taxes relating to the Escrowed 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 way holders of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood Premiere Common Stock that the Escrow Agent shall receives from the Premiere or any third party, and the Stockholders shall, in such Stockholder's sole discretion, vote such shares and execute such documents as may be responsible for income reporting only with respect necessary to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as permit such shares to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated voted by the Buyer and the Seller Stockholders 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 accordance with this Agreementtheir respective beneficial interests. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for right to vote the contents Escrow Shares, except to the extent so directed to do so by the beneficial owner of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereofrespective shares.
(kc) In If at any time following the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time date of execution of this Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by prior to the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses expiration of the Escrow Agent hereunder shall be paid by Period all claims arising out of or related to the Buyer. Any fees or expenses matters set forth in Section 5.11(c) of the Escrow Agent or its counsel which are not paid as provided VTE Disclosure Memorandum shall have been resolved to Premiere's satisfaction and all claims for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectusesLosses in respect thereof shall have been distributed to Premiere in accordance with Section 3, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent's name or the rights, powers, or duties of then the Escrow Agent shall be issued distribute to each of the Stockholders the number of Escrow Shares (rounded up to the nearest whole number) equal to (i) the sum of (A) $3,000,000 multiplied by the other parties hereto or on such parties' behalf unless Stockholder's pro rata interest in the Escrow Agent shall first have given its specific written consent thereto.
Shares, less (nB) The other parties hereto authorize the Escrow Agent, Distributed Value with respect to claims for any securities held hereunder, Losses asserted by Premiere prior to use the services of any United States central securities depository it deems appropriate, including, but not limited to, event giving rise to the Depository Trust Company and the Federal Reserve Book Entry System.rights under this Section 5(d) multiplied by such Stockholder's pro rata interest in the
Appears in 1 contract
The Escrow Agent. To induce (a) The Buyer and the Seller hereby appoint the Escrow Agent to act as escrow agent and to hold the Escrowed Funds, and the Escrow Agent hereby accepts such appointment, upon the terms and conditions set forth herein.
(b) The Buyer shall pay the Escrow Agent’s costs and fees for its ordinary services under this Agreement. The Escrow Agent shall be entitled to an administrative fee of $[ ] per year for the services to be rendered by it hereunder and to be reimbursed for all losses, liabilities or reasonable out-of-pocket expenses, including reasonable attorneys’ fees, incurred or made by it without gross negligence, bad faith or willful misconduct arising out of or in connection with its entering into this Agreement or carrying out its duties hereunder, it including the costs and expenses of defending itself against any claim of liability with respect to this Agreement. Any such compensation and reimbursement to which the Escrow Agent is entitled shall be borne 50% by the Buyer and 50% by the Seller.
(c) The duties and responsibilities of the Escrow Agent hereunder shall be determined solely by the express provisions of this Agreement. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no further agreed duties or responsibilities shall be implied. The Escrow Agent shall not in any way be bound or affected by a notice or modification or cancellation of this Agreement, unless written notice thereof is given to the Escrow Agent by the Buyer and the Seller that:Seller.
(ad) The In performing any duties under this Agreement, the Escrow Agent shall not be under any duty to give liable for damages, losses, or expenses, except for gross negligence, willful misconduct or bad faith on the Escrowed Property held by it hereunder any greater degree part of care than it gives its own similar property and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of incur any agreement among the other parties hereto except this Agreement.
such liability for (ci) The Escrow Agent shall not be liable, except for its own gross negligence any act or willful misconduct and, except with respect failure to claims based upon such gross negligence act made or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder omitted in good faith, in accordance with the terms hereof, including without limitation, any liability for any delays or (not resulting from its gross negligence or willful misconductii) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in reliance upon any instrument, including any written statement or affidavit provided for in this Agreement, that such agent shall in good faith believe to be genuine, nor will the Escrow Agent be liable or responsible for forgeries, fraud, impersonations, or determining the scope of any representative authority. The Escrow Agent is not responsible for determining and verifying the authority of any such person acting or purporting to act on behalf of any other party to this Agreement.
(e) If any controversy arises between the parties to this Agreement, or with any other party, concerning the subject matter of this Agreement, its terms or conditions, the Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Escrow Agent may hold the Escrowed Funds and may wait for settlement of any such controversy by final appropriate legal proceedings or other means as, in accordance the Escrow Agent’s discretion, may be required, despite what may be set forth elsewhere in this Agreement. In such event, the Escrow Agent will not be liable for interest or damage. Furthermore, the Escrow Agent may at its option, file an action of interpleader requiring the parties to answer and litigate any claims and rights among themselves. The Escrow Agent is authorized to deposit with the clerk of the court the entire Escrowed Funds. Upon initiating such adviceaction, the Escrow Agent shall be fully released and discharged of and from all obligations and liabilities imposed by the terms of this Agreement, except for obligations or liabilities arising by reason of the prior negligence, willful misconduct or bad faith on the part of the Escrow Agent.
(f) The Escrow Agent does not have any interest in agrees that the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay may, by mutual agreement at any time, remove it as Escrow Agent hereunder and substitute an individual or reimburse a bank or trust company for it, in which event the Escrow Agent Agent, upon request receipt of written notice thereof, shall account for one-half of any transfer taxes or other taxes relating and deliver to the Escrowed Property incurred in connection herewith such substituted escrow agent all funds and shall indemnify and hold harmless the Escrow Agent from obligations held by it, less any amounts that then due and unpaid to it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that for fees and expenses as herein provided, and the Escrow Agent shall thereafter be responsible discharged from all liability hereunder for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agentevents arising after such removal.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon If the appointment of Buyer and the Seller jointly designate a successor escrow agent, then the Escrow Agent shall deliver the Escrowed Funds to such successor escrow agent agent, whereupon the Escrow Agent shall deliver written be discharged of any liability or responsibility with respect thereto arising thereafter. If, within thirty (30) days after receipt of such notice to of resignation, the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has have not received a designation of jointly designated a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep Agent may deposit the Escrowed Property and Interest, if any, until receipt Funds into a court of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or competent jurisdiction in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderState of [ ], and upon such deposit, the Escrow Agent shall be entitled to retain the Escrowed Property and Interest, if any, until relieved of any liability or responsibility with respect thereto arising thereafter. Any corporation or association into which the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if anyits individual capacity may be merged or converted or with which it may be consolidated, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interestany corporation or association resulting from any merger, if any, in conversion or consolidation to which event the Escrow Agent in its individual capacity shall disburse be a party, or any corporation or association to which all or substantially all the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation corporate trust business of the Escrow Agent (as payment in full) for the services to its individual capacity may be rendered by sold or otherwise transferred, shall be the Escrow Agent hereunder shall be the amount without further action of $2,500 for the initial year paid by the Buyer at or the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent Seller hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and 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 or relying upon (and shall be fully protected in relying upon) any instruction, notice, demand, certificate or document from any Interested Party, any entity acting on behalf of any Interested Party or any other person or entity which it reasonably believes to be genuine, (ii) for any indirect, consequential, punitive or special damages, even if advised of the possibility thereof, (iii) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians selected by it in good faith, or (iv) for an amount in excess of the value of the Escrow Property.
(b) As security for the due and punctual performance of any and all of the Interested Parties’ obligations to the Escrow Agent hereunder, now or hereafter arising, the Interested Parties, individually and collectively, hereby pledge, assign and grant to the Escrow Agent a continuing security interest in, and a lien on and right of setoff against, the Escrow Property and all Distributions thereon, investments thereof or additions thereto (whether such additions are the result of deposits by Depositor or the investment of Escrow Property or otherwise). If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property, and may sell, convey or otherwise dispose of any Escrow Property for such purpose. The security interest and setoff rights of the Escrow Agent shall at all times be valid, perfected and enforceable by the Escrow Agent against the Interested Parties and all third parties in accordance with the terms of this Escrow Agreement.
(c) The Escrow Agent may consult with legal counsel at the expense of the Interested Parties as to any matter relating to this Escrow Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such advicecounsel.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(hd) The Escrow Agent shall not be called upon to advise incur any party as to the wisdom in selling liability for not performing any act or retaining fulfilling any duty, obligation 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 responsibility hereunder by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents reason of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon occurrence beyond the contents thereof.
(k) In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation control of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, 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 Depository Trust Company and unavailability of the Federal Reserve Book Entry SystemBank wire or telex or other wire or communication facility).
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Company or Rialto is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Company or Rialto or an entity acting on its behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among of its duties hereunder.
(b) 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 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 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, Escrow Agent shall not be liable to any of the parties hereto except this Agreementor 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.
(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 or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against on its part. In no event shall the Escrow AgentAgent be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Company and Rialto or any entity acting on behalf of the Company or Rialto, (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, (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, or (iv) for an amount in excess of the value of the Escrow Property, valued as of the date of deposit, but only to the extent of direct money damages.
(d) If any fees, expenses or costs incurred by, or any obligations owed to the Escrow Agent hereunder are not promptly paid within 30 days after an invoice had been rendered, the Buyer Escrow Agent may reimburse itself therefor from the Escrow Property, not to exceed $1,000 per year.
(e) The Escrow Agent may consult with legal counsel of its own choosing Rialto as to any matter relating to this Agreement, and the Seller shallEscrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
(f) The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, severally and not jointly, indemnify and hold harmless obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (and including but not limited to any successor escrow agent) from and against one-half act or provision of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment present or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitationfuture law or regulation or governmental authority, any liability for act of God or war, civil unrest, local or national disturbance or disaster, any delays (not resulting from its gross negligence act of terrorism, or willful misconduct) in the investment or reinvestment unavailability of the Escrowed Property Federal Reserve Bank wire or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement facsimile or the resignation of the Escrow Agentother wire or communication facility).
(dg) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eh) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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 shall not be under any duty to give the Escrow 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. Uninvested funds held hereunder shall not earn or accrue interest.
(j) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Company or is not in the form the Company and sent or intended to send (whether due to fraud, distortion or otherwise). The Company and Rialto shall indemnify the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may incur with its acting in accordance with any such communication.
(k) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by an authorized representative of the Company, which eliminates such ambiguity or uncertainty.
(l) In the event of any dispute between or conflicting claims among the Company and Rialto and any successor escrow agent) may at other person or entity with respect to any time resign Escrow Property, 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 by delivering the Escrowed Property and Interestdispute or conflict shall continue, if any, to any successor escrow agent jointly designated by the Buyer and the Seller Escrow Agent shall not be or become liable in writing any way to the Company and Rialto for failure or refusal to any comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to 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, whereupon which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall be discharged of have received security or an indemnity satisfactory to it sufficient to hold it harmless from and from against any and all further obligations arising in connection with this Agreementlosses which it may incur by reason of so acting. The resignation Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the Escrow Agent will take effect on rights of the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including parties by a court of competent jurisdiction) , and that the time for appeal from such order, judgment or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties heretodecree has expired without an appeal having been filed with such court. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the The Escrow Agent has not received shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed a designation of a successor escrow agentjoint and several obligation of, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property Company and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoRialto.
(jm) 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 conclusively rely without any liability upon the contents thereof.
(kn) In The Escrow Agent does not have any interest in the event of Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Company and Rialto shall pay or reimburse the Escrow Agent upon request for any disagreement between transfer taxes or other taxes relating to the Buyer and the Seller resulting in adverse claims or demands being made 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 way of such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company and Rialto will provide the Escrowed Property and InterestEscrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. It is understood that the Escrow Agent shall only be responsible for income reporting with respect to income earned on the Escrow Property, if any, and will not be responsible for any other reporting. This paragraph shall survive notwithstanding any termination of this Agreement or in the event that resignation or removal of 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received Agent.
(io) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on provide to the Company and Rialto monthly statements identifying expenses, transactions, transfers, and holdings of Escrow Property and each such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services statement shall be deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement Company and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 Rialto unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize is notified in writing, by the Escrow Agent, for any securities held hereunderCompany and Rialto, to use the services contrary within thirty (30) business days of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemdate of such statement.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Company is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Company or an entity acting on its behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among of its duties hereunder.
(b) 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 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 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, Escrow Agent shall not be liable to any of the parties hereto except this Agreementor 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.
(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 or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless on its part. In no event shall the Escrow Agent be liable (and i) for acting in accordance with or conclusively relying upon any successor escrow agentinstruction, notice, demand, certificate or document from the Company or any entity acting on behalf of the Company, (ii) from and against one-half of for any and all lossesindirect, liabilitiesconsequential, claims, actions, punitive or special damages, regardless of the form of action and expenseswhether or not any such damages were foreseeable or contemplated, including reasonable attorneys' fees and disbursements(iii) for the acts or omissions of its nominees, arising out of and in connection with this Agreement. Without limiting correspondents, designees, agents, subagents or subcustodians, (iv) for the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation, limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property Escrow Property, or any loss of interest or income incident to any such delays. This Section 5(c, or (v) shall survive notwithstanding any termination for an amount in excess of this Agreement or the resignation value of the Escrow AgentProperty, valued as of the date of deposit, but only to the extent of direct money damages.
(d) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Property an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder.
(e) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Company as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
(f) The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(g) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eh) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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 shall not be under any duty to give the Escrow 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 in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(j) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Company or is not in the form the Company sent or intended to send (whether due to fraud, distortion or otherwise). The Company shall indemnify the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may incur with its acting in accordance with any such communication.
(k) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Company which eliminates such ambiguity or uncertainty.
(l) In the event of any dispute between or conflicting claims among the Company and any successor escrow agent) may at other person or entity with respect to any time resign Escrow Property, 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 by delivering the Escrowed Property and Interestdispute or conflict shall continue, if any, to any successor escrow agent jointly designated by the Buyer and the Seller Escrow Agent shall not be or become liable in writing any way to the Company or any other person for failure or refusal to any comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to 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, whereupon which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall be discharged of have received security or an indemnity satisfactory to it sufficient to hold it harmless from and from against any and all further obligations arising in connection with this Agreementlosses which it may incur by reason of so acting. The resignation Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the Escrow Agent will take effect on rights of the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including parties by a court of competent jurisdiction) , and that the time for appeal from such order, judgment or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties heretodecree has expired without an appeal having been filed with such court. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the The Escrow Agent has not received a designation of a successor escrow agentshall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed an obligation of, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoCompany.
(jm) 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 conclusively rely without any liability upon the contents thereof.
(kn) In the event of The Escrow Agent does not have any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or interest in the event that Escrow Property deposited hereunder but is serving as escrow holder only and 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 good faith is in doubt as to what action it should take hereunder, connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from this Escrow Account shall be entitled subject to retain the Escrowed Property and Interest, if any, until 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 certifications, or W-8 forms for non-resident alien certifications. This paragraph shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by survive notwithstanding any termination of this Agreement or the opinion of counsel referred to in Section 3(b)) directing delivery resignation or removal of the Escrowed Property and Interest, if any, or Escrow Agent.
(iio) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on provide to the Company monthly statements identifying transactions, transfers or holdings of Escrow Property and each such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services statement shall be deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 Company unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize is notified in writing, by the Escrow Agent, for any securities held hereunderCompany, to use the services contrary within thirty (30) business days of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemdate of such statement.
Appears in 1 contract
Sources: Subscription Escrow Agreement (American Realty Capital Trust, Inc.)
The Escrow Agent. To induce (a) The duties, responsibilities and obligations of Escrow Agent shall be limited to those expressly set forth herein and no duties, responsibilities or obligations shall be inferred or implied against the Escrow Agent. The Escrow Agent shall not be subject to, nor required to comply with, any other agreement, including but not limited to the PSA Agreement, to which W&T or BEEOO is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from W&T or BEEOO. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder.
(b) 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 Escrow Property (including but not limited to act 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 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, 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.
(c) The Escrow Agent shall not be liable to BEEOO or W&T 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 or willful misconduct on its part. In no event shall the Escrow Agent be liable to BEEOO or W&T (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from W&T or BEEOO or any entity acting on behalf of W&T or BEEOO, (ii) anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, 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 (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, or (iv) for the investment or reinvestment of any cash held by it hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Property, or any loss of interest or income incident to any such delays.
(d) The Escrow Agent shall be entitled to payment of the fees set forth in Exhibit “B” hereto for all services rendered by it hereunder. If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Property an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is further agreed by the Buyer entitled to hereunder.
(e) The Escrow Agent may consult with legal counsel of its own choosing, as to any matter relating to this Agreement, including review for any request for disbursement hereunder or review of monthly reports or invoices, and the Seller that:Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel. The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(af) 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 propriety or validity or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(g) The Escrow Agent shall not be responsible in any respect for the form, execution, validity, value or genuineness of documents or securities 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. 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 Escrow Property deposited hereunder.
(h) The Escrow Agent shall not be under any duty to give the Escrowed Escrow 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 Escrowed Property funds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(bi) This Agreement expressly sets forth all the duties of At any time the Escrow Agent may request an instruction in writing from W&T and BEEOO and may, at its own option, include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with respect to any its duties and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agenthereunder. The Escrow Agent shall not be bound by liable for acting in accordance with such a proposal on or after the provisions date specified therein, provided that the specified date shall be at least three (3) Business Days after W&T and BEEOO receives the Escrow Agent’s request for instructions and its proposed course of any agreement among action, and provided further that, prior to so acting, the other parties hereto except this AgreementEscrow Agent has not received the written instructions requested.
(cj) The When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by facsimile or electronic transmission, the Escrow Agent, absent gross negligence or willful misconduct, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of W&T or BEEOO or is not in the form W&T or BEEOO sent or intended to send (whether due to fraud, distortion or otherwise), if the document is signed by one of the respective representatives shown on Exhibit “A”. W&T and BEEOO shall release the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may incur as a result of the Escrow Agent acting in accordance with any such communication.
(k) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by W&T and BEEOO which eliminates such ambiguity or uncertainty.
(l) In the event of any dispute between or conflicting claims among W&T or BEEOO with respect to any Escrow Property, 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 liable, except or become liable in any way for its own gross negligence failure or willful misconduct and, except refusal to comply with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, conflicting claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreementdemands or instructions. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent shall be entitled to rely refuse to act until, in good faith upon any its sole discretion, either (i) such conflicting or adverse claims or demands shall have been determined by a final order, judgmentjudgment or decree of a court of competent jurisdiction, certificationwhich order, demandjudgment or decree is not subject to appeal, notice, instrument or other settled by agreement between the conflicting parties as evidenced in a writing delivered satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it hereunder in accordance with sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the terms hereof without being required presenting party, satisfactory to determine the authenticity Escrow Agent, to the effect that said order, judgment or the correctness of any fact stated therein or the propriety or validity decree represents a final adjudication of the service thereofrights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Escrow Agent shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may act deem, in reliance upon any instrument or signature believed by it in good faith to be genuine its sole discretion, necessary. The costs and may assume that any person purporting to give receipt or advice or make any statement or execute any document expenses (including reasonable attorneys’ fees and expenses) incurred in connection with the provisions hereof has been duly authorized to do sosuch interpleader proceeding shall be paid by, and shall be deemed a joint obligation of, W&T and BEEOO.
(em) 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 act pursuant to conclusively rely without any liability upon the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advicecontents thereof.
(fn) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller W&T shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed Escrow Property incurred in connection herewith paid to W&T hereunder and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein then in force with respect to United States taxes. W&T and BEEOO will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Escrow Property and is will not be responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(ho) The Escrow Agent shall not be called upon provide to advise any party as to the wisdom in selling W&T and BEEOO monthly statements identifying transactions, transfers or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The holdings of Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the Escrow Agent each such statement shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement W&T and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 BEEOO unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize the Escrow Agentis notified in writing, for any securities held hereunderby W&T or BEEOO, to use the services contrary within thirty (30) business days of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company date of such statement. W&T and the Federal Reserve Book Entry SystemBEEOO agree to waive their right to receive trade confirmations as they occur.
Appears in 1 contract
Sources: Operated Escrow Agreement (Black Elk Energy Finance Corp.)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred to or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Fund is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from the Fund or any entity acting on the Fund's behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among of its duties hereunder.
(b) 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 Escrow 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 Escrow 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, Escrow Agent shall not be liable to any of the parties hereto except this Agreementor 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.
(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 or willful misconduct andon its part, except as such is proved in a court or tribunal of competent jurisdiction. In no event shall the Escrow Agent be liable (i) for acting in accordance with respect to claims based or conclusively relying upon any instruction, notice, demand, certificate or document from the Fund or any entity acting on behalf of the Fund, (ii) for any indirect, cumulative, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated unless such damages arise from the gross negligence, intentional acts, or willful misconduct of the Escrow Agent, or (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, unless the Escrow Agent's selection of such nominees, correspondents, designees, agents, subagents or subcustodians of the Escrow Agent involves gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation on part of the Escrow Agent.
(d) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Funds and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Funds for such purpose.
(e) The Escrow Agent may consult with legal counsel of its own choosing as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
(f) The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(g) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eh) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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 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. Uninvested funds held hereunder shall not earn or accrue interest.
(and any successor escrow agentj) may at At any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged may request an instruction in writing, in English from the Fund and may, at its own option, include in such request the course of action it proposes to take and from the date on which it proposes to act, regarding any and all further obligations matter arising in connection with this Agreementits duties and obligations hereunder. The resignation of Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the Escrow Agent will take effect on the date sends such request for instructions and its proposed course of action to Fund by fax or electronic mail (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdictionreceipt confirmed) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation by overnight courier, and provided further that, prior to the other parties hereto. Upon the appointment of a successor escrow agentso acting, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation the written instructions from the Fund to refrain from taking the proposed action.
(k) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of a successor escrow agentsecurities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent's sole responsibility after , absent gross negligence as proved in a court or tribunal of competent jurisdiction, shall not be responsible or liable in the Resignation Date event such communication is not an authorized or authentic communication of the Fund or is not in the form the Fund sent or intended to send (whether due to fraud, distortion or otherwise). The Fund shall be to safekeep indemnify the Escrowed Property Escrow Agent against any loss, liability, claim or expense (including legal fees and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoexpenses) it may incur with its acting in accordance with any such communication.
(jl) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Funds. The Escrow Agent may, but is not obligated to, inform the Fund in writing of the ambiguity. If the Fund provides the Escrow Agent with written instructions which eliminates such ambiguity or uncertainty, the Escrow Agent shall comply with such written instructions.
(m) In the event of any dispute between or conflicting claims among the Fund and any other person or entity with respect to any Escrow Funds, 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 Funds so long as such dispute or conflict shall continue, and the Escrow Agent shall not be or become liable in any way to the Fund or any other person for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to 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 satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Escrow Agent shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys' fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed an obligation of, the Fund.
(n) 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 conclusively rely without any liability upon the contents thereof.
(ko) In the event of The Escrow Agent does not have any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or interest in the event that Escrow Funds deposited hereunder but is serving as escrow holder only and having only possession thereof. The Fund shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrow Funds incurred in good faith connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in doubt the way of such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Fund will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. This paragraph shall survive notwithstanding any termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(p) The Escrow Agent shall provide to the Fund monthly statements identifying transactions, transfers or holdings of Escrow Funds and each such statement shall be deemed to be correct and final upon receipt thereof by the Fund unless the Escrow Agent is notified in writing, by the Fund, to the contrary within thirty (30) business days of the date of such statement.
(q) The Fund shall deliver to the Escrow Agent a list of authorized signatories, as set forth in the attached Schedule 2 hereto, with respect to what action it should take any notice, certificate, instrument, demand, request, direction, instruction, waiver, receipt, consent or other document or communication required or permitted to be furnished to the Escrow Agent hereunder, and the Escrow Agent shall be entitled to retain the Escrowed Property and Interest, if any, rely on such list with respect to any party until a new list is furnished by such party to the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if anyAgent. Furthermore, in which the event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, funds transfer instructions are given (other than in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer writing at the time of execution of this Agreement Agreement), whether in writing, by fax or otherwise, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on Schedule 3 hereto, and $2,000 annually thereafter, together with reimbursement the Escrow Agent may rely upon the confirmations of anyone purporting to be the person or persons so designated. The persons and telephone numbers designated for all reasonable expenses, disbursements and advances incurred or made such call-backs may be changed only in a writing actually received by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunderAgent.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent is expressly authorized and directed, but shall not be obligated, to charge against and withdraw from the Escrow Account for its own account or for the account of an Indemnitee (as hereinafter defined) any amounts due to the Escrow Agent under this Section 9(a) or to an Indemnitee under Section 9(b). To the extent that (i) the Escrow Agent in its sole discretion decides to charge against and withhold from the Escrow Account any duty to give such amounts and the Escrowed Property held by it hereunder Amount is insufficient to pay the amounts due to the Escrow Agent under this Section 9(a) or to an Indemnitee under Section 9(b) or (ii) the Escrow Agent decides not to charge and withhold any greater degree of care than it gives its own similar property and shall not be required such amounts from the Escrow Account, the Company agrees to invest any Escrowed Property held hereunder except as directed pay such amounts to the Escrow Agent or such Indemnitee on demand. The obligations contained in this Agreement. Uninvested funds held hereunder Section 9(a) shall not earn survive the termination of this Agreement and the resignation or accrue interestremoval of the Escrow Agent.
(b) This Agreement expressly sets forth The Company agrees to indemnify, defend, protect, save and keep harmless the Escrow Agent and its affiliates and their respective successors, assigns, directors, officers, partners, managers, employees, agents, attorneys, accountants and experts (collectively the “Indemnitees”), from and against any and all losses, damages, claims, liabilities, penalties, judgments, settlements, actions, suits, proceedings, litigation, investigations, costs or expenses, including without limitation reasonable fees and disbursements of counsel (collectively “Losses”), that may be imposed on, incurred by, or asserted against any Indemnitee, at any time, and in any way relating to or arising out of the duties execution, delivery or performance of this Agreement, the enforcement of any rights or remedies under or in connection with this Agreement, the establishment of the Escrow Agent with respect Account, the acceptance or administration of the Escrowed Amount and any payment, transfer or other application of funds pursuant to this Agreement, or as may arise by reason of any and all matters pertinent heretoact, omission or error of the Indemnitee. No implied duties or The obligations contained in this Section 9(b) shall be read into survive the termination of this Agreement against and the resignation or removal of the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liableliable for any error of judgment or for any action taken, suffered or omitted to be taken, except for in the case of its own gross negligence or willful misconduct andbad faith, except with respect to claims based upon such gross negligence as determined by a final, non-appealable order, judgment, decree or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless ruling or a court of competent jurisdiction. In no event shall the Escrow Agent be (and i) liable for acting in accordance with a notice, instruction, direction, request or other communication, paper or document from ▇▇▇▇▇▇, the Company or any successor escrow agentother person or entity authorized to deliver such hereunder, or (ii) from and against one-half liable or responsible for special, punitive, indirect, consequential or incidental loss or damages of any and all losseskind whatsoever to any person or entity (including without limitation lost profits), liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, even if the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment has been advised of the Escrowed Property likelihood of such loss or any loss damage. Any liability of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of the Escrow Agent under this Agreement or will be limited to the resignation amount of fees paid to the Escrow Agent.
(d) The Escrow Agent shall act hereunder as an escrow agent only and shall not be entitled to rely responsible or liable in good faith upon any ordermatter whatsoever for the sufficiency, judgmentcollection, certificationcorrectness, demandgenuineness or validity or any revenues, noticecash, instrument payments, securities, property, funds, investments, income, earnings, or other writing delivered to amounts deposited with or held by it hereunder in accordance with or for the terms hereof without being required to determine the authenticity identity, authority or the correctness rights of any fact stated therein person or the propriety entity executing and delivering or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt execute or advice or make deliver any statement or execute any document in connection with thereof to the provisions hereof has been duly authorized to do soEscrow Agent.
(e) The Escrow Agent may act pursuant shall be fully protected in acting upon any written notice, instruction, direction, request or other communication, paper or document which the Escrow Agent believes to the advice of counsel with respect to any matter relating to this Agreement be genuine, and shall not be liable for have no duty to inquire into or investigate the validity, accuracy or content or any action taken or omitted in good faith in accordance with such advicethereof.
(f) The Escrow Agent does not have any interest in In the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood event that the Escrow Agent shall be responsible for income reporting only with respect uncertain as to income earned on investment of its duties or rights hereunder, the Escrow Agent shall be entitled to refrain from taking any action other than to keep safely the Escrowed Property Amount until it shall (i) receive written instructions signed by ▇▇▇▇▇▇ and the Company; or (ii) is directed otherwise by a court of competent jurisdiction. The Escrow Agent shall not responsible be liable for any other reporting. This Section 5(f) shall survive notwithstanding any termination of failure to act if in reasonable doubt as to its duties under this Agreement or the resignation of the Escrow AgentAgreement.
(g) The Escrow Agent makes may consult with and obtain advice from counsel (who may be counsel to a party hereto) and shall be fully protected in taking or omitting to take any action in reliance on said advice.
(h) The Escrow Agent shall have no representation duties, responsibilities or obligations as the Escrow Agent except those which are expressly set forth herein, and in any modification or amendment hereof to which the validityEscrow Agent has consented in writing, valueand no duties, genuineness responsibilities or obligations shall be implied or inferred. Without limiting the collectability of foregoing, the Escrow Agent shall not be subject to, nor be required to comply with, or determine if any security person or entity has complied with, the Merger Agreement or any other agreement between or among the parties hereto, even though reference thereto may be made in this Agreement, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Agreement.
(i) The Escrow Agent shall not be obligated to expend or instrument held by risk its own funds or delivered 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.
(hj) The Escrow Agent shall not take instructions or directions except those given in accordance with this Agreement.
(k) The Escrow Agent shall 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).
(l) The Escrow Agent shall not be called upon to advise any party person or entity as to the wisdom in selling or retaining or taking or refraining from any action investments with respect to any securities security, property or other property deposited hereunderfunds held in escrow hereunder or the dividends, distributions, income, interest or earnings thereon.
(i) The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(jm) The Escrow Agent shall have no responsibility for duty to make inquiry as to the contents genuineness, accuracy or validity of any writing of statements or instructions or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereofsignatures on statements or instructions.
(kn) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at the addresses set forth herein or at such other addresses as the parties shall provide in writing, at least thirty (30) days prior to the date specified for such resignation to take effect. In such event, ▇▇▇▇▇▇ and the Company shall appoint a successor escrow agent within said thirty (30) days. If ▇▇▇▇▇▇ and the Company do not designate a successor escrow agent within such period, the Escrow Agent may appoint a successor escrow agent. Upon the effective date of such resignation, the Escrowed Amount held by the Escrow Agent shall be delivered by it to such successor escrow agent. In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with a successor escrow agent has not been appointed within thirty (30) days, the Escrowed Property Amount held by the Escrow Agent shall be delivered to and Interestdeposited with a court of competent jurisdiction to act as successor escrow agent. Upon the delivery of the Escrowed Amount to a successor escrow agent pursuant to this Section 9(n), if anythe Escrow Agent shall be relieved of all liability hereunder.
(o) The Escrow Agent may be removed by mutual agreement of the parties upon written notice to the Escrow Agent stating such removal and designating a successor escrow agent and, or in upon delivery of the Escrowed Amount held by the Escrow Agent to such successor escrow agent, the Escrow Agent shall be relieved of all liability hereunder.
(p) In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the parties hereto, the Escrow Agent shall have the right to interplead said parties in good faith is in doubt as any court of competent jurisdiction and request that such court determine the respective rights of such parties with respect to what action it should take hereunderthis Agreement and, upon doing so, the Escrow Agent shall be entitled released from any obligations or liability to retain the Escrowed Property and Interest, if any, until the either party as a consequence of any such claims or demands.
(q) The Escrow Agent shall have received may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents, attorneys, accountants or other experts.
(ir) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination not be responsible for and shall not be under a duty to examine, inquire into or agreement without further question.
(l) The compensation of pass upon the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of validity, binding effect, execution or sufficiency of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemamendment or supplement hereto.
Appears in 1 contract
Sources: Escrow Agreement (Genesis Fluid Solutions Holdings, Inc.)
The Escrow Agent. To induce Acceptance by the Escrow Agent of its duties under this Agreement is subject to act hereunderthe following terms and conditions, it is further agreed by which the Buyer parties to this Agreement hereby agree shall govern and control the Seller thatrights, duties and immunities of the Escrow Agent:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property duties and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties obligations of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into determined solely by the express provisions of this Agreement against (except and to the Escrow Agent. The extent otherwise expressly provided herein) and the Escrow Agent shall not be bound by the provisions of any agreement among between the other parties hereto except this Agreement.Company and any of the Purchasers or any third party;
(b) Notwithstanding anything to the contrary contained herein, the duties and obligations of the Escrow Agent hereunder shall extend only to the delivery of the Escrowed Shares to the Purchasers or the Company, as the case may be, pursuant to Section 2 above and such duties and obligations will terminate upon the Expiration Date;
(c) The Escrow Agent shall not be liableresponsible for any failure or inability of the parties to this Agreement, or of anyone else, to deliver shares or other property to the Escrow Agent or otherwise to honor any of the provisions of this Agreement;
(d) The out-of-pocket fees and expenses of the Escrow Agent in administering this Agreement shall be borne by the Company. The Company shall indemnify the Escrow Agent and each of its partners, employees and agents for, and hold it harmless against any loss, liability or expense, including but not limited to reasonable attorneys' fees and expenses arising out of or in connection with its acceptance of, or the performance of its duties and obligations under this Agreement (including, but not limited to, any action taken or omitted by the Escrow Agent in connection with this Agreement or any action allegedly so taken or omitted) or by reason of, or as a result of, the Escrow Agent's compliance with the instructions by the Company, except for its own with respect to any loss, liability or expense which shall be finally adjudicated to be the result of gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against on the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation party of the Escrow Agent.
(d) The Escrow Agent shall be entitled to rely in good faith upon any orderAgents, judgmentit partners, certification, demand, notice, instrument employees or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.agents;
(e) The Escrow Agent may act pursuant to shall be fully protected in acting on and relying upon any written notice, direction, request, waiver, consent, receipt or other paper or document which the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted Escrow Agent in good faith in accordance with such advice.believes to be genuine and to have been signed or presented by the proper party or parties from time to time;
(f) The Escrow Agent does shall not have be liable for any interest error of judgment, or for any act done or step taken or omitted by it in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay good faith or reimburse the Escrow Agent upon request for one-half of any transfer taxes mistake in fact or other taxes relating to the Escrowed Property incurred law, or for anything which it may do or refrain from doing in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement herewith, except its own willful misconduct or the resignation of the Escrow Agent.gross negligence;
(g) The Escrow Agent makes no representation may seek the advice of legal counsel in the event of any dispute or question as to the validity, value, genuineness or the collectability construction of any security of the provisions of this Agreement or other document its duties hereunder, and it shall incur no liability and shall be fully protected in respect of any action taken, omitted or instrument held suffered by or delivered to it.it in good faith in accordance with the written opinion of such counsel; and
(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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 ambiguity in the Buyer and the Seller resulting in adverse claims or demands being made in connection with provisions governing the Escrowed Property and InterestShares or uncertainty on the part of the Escrow Agent as to how to proceed, if any, or in the event such that the Escrow Agent Agent, in good faith is in doubt as its sole and absolute judgment, deems it necessary for its protection so to what action it should take hereunderdo, the Escrow Agent shall be entitled may refrain from taking any action other than to retain custody of the Escrowed Property and Interest, if any, Shares deposited hereunder until the Escrow Agent it shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied written instructions signed by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, Company in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution provisions of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunderAgreement.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Escrow Agreement (Liebman Leon)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer 5.1 The parties acknowledge and the Seller agree that:
(a) The the duties and obligations of the Escrow Agent shall be determined solely by the provisions of this Agreement and, accordingly, the Escrow Agent shall not be under any duty to give responsible except for the Escrowed Property held by it hereunder any greater degree performance of care than it gives its own similar property such duties and shall not be required to invest any Escrowed Property held hereunder except obligations as directed the Escrow Agent has undertaken in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.;
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound responsible for any error in judgement or for any act done or step taken or omitted to be taken by the provisions Escrow Agent in good faith or for any mistake, in fact or law, or for anything which the Escrow Agent may do or refrain from doing in connection with this Agreement except arising out of any agreement among the other parties hereto except this Agreement.Escrow Agent’s own negligence or wilful misconduct;
(c) The Escrow Agent shall not be liable, except for its own gross negligence if there is any question as to any of the provisions of this Agreement or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with ’s duties under this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection have the right to consult with its investment or reinvestment of any cash held and obtain advice from legal counsel appointed 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The , who may but need not be legal counsel for any of the parties to this Agreement, and 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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement incur no responsibility and shall not be liable for any action taken or omitted fully protected in acting in good faith in accordance with any opinion or instruction of such advice.counsel; the Corporation shall pay the reasonable fees, expenses and disbursements of any such counsel so retained by the Escrow Agent;
(d) the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, the Escrow Agent is to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by the Corporation of the Escrow Agent’s outstanding fees and expenses, if any);
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon required to advise make any party as to the wisdom in selling determination or retaining or taking or refraining from any action decision with respect to the validity of any securities claim made by any party or other property deposited hereunder.of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement;
(ig) The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which there is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller parties to this Agreement resulting in adverse claims or demands being made in connection with respect to the Escrowed Property Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and Interestin so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if anythere is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the event that Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Shareholder (as the case may be) shall indemnify the Escrow Agent in good faith is any such action, interpleader or any other action or proceeding for all costs, expenses and fees in doubt its capacity as to what escrow agent in connection with any deposit or any action it should take hereunder, brought in connection with this Agreement;
(i) the Escrow Agent shall be entitled to retain the Escrowed Property and Interest, if any, until represent itself in connection with any legal actions taken in connection with this Agreement; and
(j) upon the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing Agent’s delivery of the Escrowed Property and InterestShares, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect to the Escrowed Shares, other parties hereto or on than obligations existing as of the date of such parties' behalf unless delivery of the Escrow Agent shall first have given its specific written consent theretoEscrowed Shares.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunderunder this ---------------- Agreement, it is further agreed by the Buyer Bankrate and the Seller REALIC that:
(aA) The Escrow Agent shall not be under any duty to give the Executed Agreements, the Escrowed Property Funds or the Escrowed Note held by it hereunder under this Agreement any greater degree of care than it gives its own similar property and shall not be required to invest any Escrowed Property funds held hereunder under this Agreement except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.;
(bB) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent heretoto this Agreement. No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto to this Agreement except this Agreement.;
(cC) The Escrow Agent shall not have no liability with regard to any duty under this Agreement nor be liableresponsible for the loss of the Executed Agreements, the Escrowed Funds or the Escrowed Note except for its own gross negligence or in the event of willful and intentional misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against on the part of the Escrow Agent, the Buyer . Bankrate and the Seller shall, REALIC shall jointly and severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.;
(dD) 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 in accordance with the terms hereof pursuant to this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.;
(eE) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement Agreement, and shall not be liable for any action taken or omitted in good faith in accordance with such advice.;
(fF) The Escrow Agent does not have any interest in the Executed Agreements, the Escrowed Property Funds or the Escrowed Note deposited hereunder but under this Agreement and is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.agent only;
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(jG) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein in this Agreement as a means to resolve disputes disputes, and may rely without any liability upon the contents thereofof such writing;
(H) Notwithstanding its duties pursuant to this Agreement, the Escrow Agent shall have the right to represent Bankrate as legal counsel, including, without limitation, in connection with any dispute arising under this Agreement.
(kI) In Notwithstanding the provisions of Section 3 of this Agreement, in the event of any disagreement among or between the Buyer Bankrate and the Seller REALIC resulting in adverse claims or demands being made in connection with the Executed Agreements, the Escrowed Property and Interest, if anyFunds or the Escrowed Note, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderunder this Agreement, the Escrow Agent shall be entitled to retain the Escrowed Property parties agree and Interest, if any, until acknowledge that the Escrow Agent shall have received the right to (i) interplead all or any portion of the Escrowed Funds with the Circuit Court in and for Palm Beach County, Florida; (ii) seek a Final Determination (as defined in Section 3(b) final and accompanied by the opinion non-appealable order of counsel referred to in Section 3(b)) a court of competent jurisdiction directing delivery of the Executed Agreements, the Escrowed Property and Interest, if any, Funds or the Escrowed Note; or (iiiii) obtain a written agreement executed by the Buyer Bankrate and the Seller REALIC directing delivery of the Executed Agreements, the Escrowed Property and Interest, if anyFunds or the Escrowed Note, in which event the Escrow Agent shall disburse the Executed Agreements, the Escrowed Property and Interest, if any, Funds or the Escrowed Note in accordance with such Final Determination order or agreement. Any court order resulting from or referred to by any action taken pursuant to clauses (i) or (ii) of this Section 7(I) shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such Final Determination or agreement court order and legal opinion without further question.; and
(lJ) The compensation of the Escrow Agent (may resign from its position as payment in full) escrow agent at any time, for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 any reason or for the initial year paid by the Buyer at the time of execution of this Agreement no reason, and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.without prior notice; and
(mK) No prospectusesExcept as may otherwise be provided in this Agreement, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent's name or obligations pursuant to this Agreement shall terminate upon the rights, powers, or duties completion 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 theretodisbursements pursuant to Section 3 above.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Termination Agreement and General Release (Bankrate Inc)
The Escrow Agent. To induce Notwithstanding anything herein to the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoingcontrary, the Escrow Agent shall in no event be liable promptly dispose of all or any part of the Escrow Fund as directed by a writing signed by the Escrow Representative and the Company. The reasonable fees and expenses of the Escrow Agent, including the fees and disbursements of its counsel, if any, in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination performance of this Agreement or shall be paid from the resignation of income on the Escrow Agent.
(d) Fund and, if and to the extent not so paid, shall be borne by the Company. The Escrow Agent may decline to act and shall not be entitled liable for failure to rely act if in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered doubt as to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofits duties under this Agreement. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt any notice or advice or make any statement or execute any document in connection with the provisions hereof instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so.
(e) . The Escrow Agent may act pursuant to the advice of counsel Agent's duties shall be determined only with respect to any matter relating reference to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only applicable laws, and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for charged with knowledge of or any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement duties or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 responsibilities in connection with this Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the any other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination document or agreement. The Escrow Agent shall act on have the right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at the addresses set forth herein or at such Final Determination or agreement without further question.
other address as the parties shall provide, at least thirty (l30) The compensation of business days prior to the date specified for such resignation to take effect. If the parties hereto do not designate a successor escrow agent within said thirty (30) business days, the Escrow Agent (as payment in full) for may appoint a successor escrow agent. Upon the services to be rendered effective date of such resignation, all cash and other payments and all other property then held by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid delivered by it to such successor escrow agent or as otherwise shall be designated in writing by the Buyer at parties hereto. In the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by event that the Escrow Agent in performance of its duties hereunder (including reasonable feesshould at any time be confronted with inconsistent or conflicting claims or demands by the parties hereto, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by have the Buyer. Any fees or expenses right to interplead said parties in any court of competent jurisdiction and request that such court determine such respective rights of the parties with respect to this Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectusesAgreement, press releasesand upon doing so, reports and promotional material or other similar materials which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued released from any obligations or liability to either party as a consequence of any such claims or demands. The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by the other parties hereto or on such parties' behalf unless the through its agents or attorneys. The Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize not be responsible for and shall not be under a duty to examine into or pass upon the validity, binding effect, execution or sufficiency of this Escrow Agent, for any securities held hereunder, to use the services Agreement or of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemagreement amendatory or supplemental hereto.
Appears in 1 contract
Sources: Supply Agreement (C P Clare Corp)
The Escrow Agent. To induce 4.1 In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent to will act hereunderhonestly and in good faith and will exercise that degree of care, it is further agreed by the Buyer diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
4.2 The Purchaser and the Seller that:Vendor jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof.
(a) 4.3 In case proceedings should hereafter be taken in any court respecting the Transfer Documents or the Purchase Shares, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings.
4.4 The Escrow Agent shall not be under any will have no responsibility in respect of loss of the Transfer Documents or the Purchase Shares except the duty to give exercise such care in the Escrowed Property held by safekeeping thereof as it hereunder any greater degree of care than it gives its own similar property would exercise if the Transfer Documents and shall not be required the Purchase Shares belonged to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel.
4.5 The Escrow Agent will not be bound in any way by any contract between the provisions of any agreement among the other parties hereto except this Agreement.
(c) whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Transfer Documents and the Purchase Shares as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth.. The Escrow Agent shall will not be liablerequired to pass upon the sufficiency of any of the Transfer Documents or Purchase Shares or to ascertain whether or not the person or persons who have executed, except signed or otherwise issued or authenticated the said documents have authority to, so execute, sign or authorize, issue or authenticate the said documents or any of them, or the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent.
4.6 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its own gross negligence attention.
4.7 In the event that the Transfer Documents or willful misconduct andPurchase Shares are attached, except with respect to claims based garnished or levied upon under any court order, or if the delivery of such gross negligence property is stayed or willful misconduct that are successfully asserted against enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Buyer Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the Seller shall, severally and not jointly, indemnify and hold harmless contrary. If the Escrow Agent (obeys and complies with any successor escrow agent) from and against one-half such writs, order, judgment. or decrees it will not be liable to any of the parties hereto or to any and all lossesother person, liabilitiesfirm or corporation by reason of such compliance, claimsnotwithstanding that such writs, actionsorders, damagesjudgments or decrees may be subsequently reversed, and expensesmodified, including reasonable attorneys' fees and disbursementsannulled, arising out of and in connection with this Agreement. Without limiting the foregoingset aside or vacated.
4.8 Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall in no event not be liable in connection with its investment or reinvestment of by reason thereof to any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property parties hereto or any loss of interest incident to any other person, firm, association or corporation, even if thereafter any such delaysorder, judgment or decree may be reversed, modified, annulled, set aside or vacated.
4.9 If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Transfer Documents or Purchase Shares until the lawful determination of the issue between the parties hereto.
4.10 If protest is made, to any action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may continue to hold the Transfer Documents or Purchase Shares until the right to the documents is legally determined by a court of competent jurisdiction or otherwise.
4.11 If written notice of protest is made by either the Purchaser or the Vendor to the Escrow Agent to any action contemplated by the Escrow Agent under this Agreement, and such notice sets out reasons for such protest, the Escrow Agent will be entitled to continue to hold the Transfer Documents or the Purchase Shares until the right to the documents is legally determined by a court of competent jurisdiction or otherwise.
4.12 The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' notice thereof to each of the Purchaser or the Vendor. This Section 5(cThe Purchaser and the Vendor may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) shall days' prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Vendor may agree upon. All indemnities granted to the Escrow Agent will survive notwithstanding any the termination of this Agreement or the resignation or termination of the Escrow Agent.
(d) The Escrow Agent shall be entitled 4.13 Notwithstanding anything herein to rely in good faith upon any orderthe contrary, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed written instructions given by it in good faith to be genuine the Vendor and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do soPurchaser jointly.
(e) The 4.14 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Vendor or between any other persons or between any of them with respect to the Asset Purchase Agreement, this Agreement or any matters arising thereto, or with respect to the Shares, the Escrow Agent may act pursuant to in its sole discretion deliver and interplead the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer Transfer Documents and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating Purchase Shares into court and such delivery and interpleading will be an effective discharge to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) 4.15 The Escrow Agent makes is under no representation as responsibility to the validity, value, genuineness or the collectability of any security or other 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 or taking or refraining from take any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (whatsoever unless and any successor escrow agent) may at any time resign as such by delivering until the Escrowed Property fees and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation disbursements of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier due or reasonably expected to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment accrue are paid in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Escrow Agreement (Bingo Com Inc)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent is expressly authorized and directed, but shall not be obligated, to charge against and withdraw from the Escrow Account for its own account or for the account of an Indemnitee (as hereinafter defined) any amounts due to the Escrow Agent under this Section 9(a) or to an Indemnitee under Section 9(b). To the extent that (i) the Escrow Agent in its sole discretion decides to charge against and withhold from the Escrow Account any duty to give such amounts and the Escrowed Property held by it hereunder Amount is insufficient to pay the amounts due to the Escrow Agent under this Section 9(a) or to an Indemnitee under Section 9(b) or (ii) the Escrow Agent decides not to charge and withhold any greater degree of care than it gives its own similar property and shall not be required such amounts from the Escrow Account, the Company agrees to invest any Escrowed Property held hereunder except as directed pay such amounts to the Escrow Agent or such Indemnitee on demand. The obligations contained in this Agreement. Uninvested funds held hereunder Section 9(a) shall not earn survive the termination of this Agreement and the resignation or accrue interestremoval of the Escrow Agent.
(b) This Agreement expressly sets forth The Company agrees to indemnify, defend, protect, save and keep harmless the Escrow Agent and its affiliates and their respective successors, assigns, directors, officers, partners, managers, employees, agents, attorneys, accountants and experts (collectively the "Indemnitees"), from and against any and all losses, damages, claims, liabilities, penalties, judgments, settlements, actions, suits, proceedings, litigation, investigations, costs or expenses, including without limitation reasonable fees and disbursements of counsel (collectively "Losses"), that may be imposed on, incurred by, or asserted against any Indemnitee, at any time, and in any way relating to or arising out of the duties execution, delivery or performance of this Agreement, the enforcement of any rights or remedies under or in connection with this Agreement, the establishment of the Escrow Agent with respect Account, the acceptance or administration of the Escrowed Amount and any payment, transfer or other application of funds pursuant to this Agreement, or as may arise by reason of any and all matters pertinent heretoact, omission or error of the Indemnitee. No implied duties or The obligations contained in this Section 9(b) shall be read into survive the termination of this Agreement against and the resignation or removal of the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liableliable for any error of judgment or for any action taken, suffered or omitted to be taken, except for in the case of its own gross negligence or willful misconduct andbad faith, except as determined by a final, non-appealable order, judgment, decree or ruling or a court of competent jurisdiction. In no event shall the Escrow Agent be (i) liable for acting in accordance with respect a notice, instruction, direction, request or other communication, paper or document from ▇▇▇▇▇▇, the Company or any other person or entity authorized to claims based upon deliver such gross negligence hereunder, or willful misconduct that are successfully asserted against (ii) liable or responsible for special, punitive, indirect, consequential or incidental loss or damages of any kind whatsoever to any person or entity (including without limitation lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage. Any liability of the Escrow Agent under this Agreement will be limited to the amount of fees paid to the Escrow Agent
(d) The Escrow Agent shall act hereunder as an escrow agent only and shall not be responsible or liable in any matter whatsoever for the sufficiency, collection, correctness, genuineness or validity or any revenues, cash, payments, securities, property, funds, investments, income, earnings, or other amounts deposited with or held by it or for the Buyer identity, authority or rights of any person or entity executing and delivering or purporting to execute or deliver any thereof to the Seller shallEscrow Agent.
(e) The Escrow Agent shall be fully protected in acting upon any written notice, severally and not jointlyinstruction, indemnify and hold harmless direction, request or other communication, paper or document which the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damagesbelieves to be genuine, and expensesshall have no duty to inquire into or investigate the validity, including accuracy or content or any thereof.
(f) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder, the Escrow Agent shall be entitled to refrain from taking any action other than to keep safely the Escrowed Amount until it shall (i) receive written instructions signed by ▇▇▇▇▇▇ and the Company; or (ii) is directed otherwise by a court of competent jurisdiction. The Escrow Agent shall not be liable for failure to act if in reasonable attorneys' fees doubt as to its duties under this Agreement.
(g) The Escrow Agent may consult with and disbursementsobtain advice from counsel (who may be counsel to a party hereto) and shall be fully protected in taking or omitting to take any action in reliance on said advice.
(h) The Escrow Agent shall have no duties, arising out of responsibilities or obligations as the Escrow Agent except those which are expressly set forth herein, and in connection with this Agreementany modification or amendment hereof to which the Escrow Agent has consented in writing, and no duties, responsibilities or obligations shall be implied or inferred. Without limiting the foregoing, the Escrow Agent shall in no event not be liable in connection with its investment subject to, nor be required to comply with, or reinvestment of determine if any cash held by it hereunder in good faithperson or entity has complied with, in accordance with the terms hereof, including without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property Merger Agreement or any loss of interest incident other agreement between or among the parties hereto, even though reference thereto may be made in this Agreement, or to comply with any such delays. This Section 5(c) shall survive notwithstanding any termination of notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Agreement or the resignation of the Escrow AgentAgreement.
(di) The Escrow Agent shall not be entitled obligated to rely in good faith upon expend or risk its own funds or to take any orderaction which it believes would expose it to expense or liability or to a risk of incurring expense or liability, judgment, certification, demand, notice, instrument or other writing delivered to unless it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice furnished with assurances of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken repayment or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered indemnity satisfactory to it.
(hj) The Escrow Agent shall not take instructions or directions except those given in accordance with this Agreement.
(k) The Escrow Agent shall 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).
(l) The Escrow Agent shall not be called upon to advise any party person or entity as to the wisdom in selling or retaining or taking or refraining from any action investments with respect to any securities security, property or other property deposited hereunderfunds held in escrow hereunder or the dividends, distributions, income, interest or earnings thereon.
(i) The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(jm) The Escrow Agent shall have no responsibility for duty to make inquiry as to the contents genuineness, accuracy or validity of any writing of statements or instructions or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereofsignatures on statements or instructions.
(kn) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at the addresses set forth herein or at such other addresses as the parties shall provide in writing, at least thirty (30) days prior to the date specified for such resignation to take effect In such event, ▇▇▇▇▇▇ and the Company shall appoint a successor escrow agent within said thirty (30) days. If ▇▇▇▇▇▇ and the Company do not designate a successor escrow agent within such period, the Escrow Agent may appoint a successor escrow agent Upon the effective date of such resignation, the Escrowed Amount held by the Escrow Agent shall be delivered by it to such successor escrow agent. In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with a successor escrow agent has not been appointed within thirty (30) days, the Escrowed Property Amount held by the Escrow Agent shall be delivered to and Interestdeposited with a court of competent jurisdiction to act as successor escrow agent. Upon the delivery of the Escrowed Amount to a successor escrow agent pursuant to this Section 9(n), if anythe Escrow Agent shall be relieved of all liability hereunder.
(o) The Escrow·Agent may be removed by mutual agreement of the parties upon written notice to the Escrow Agent stating such removal and designating a successor escrow agent and, or in upon delivery of the Escrowed Amount held by the Escrow Agent to such successor escrow agent, the Escrow Agent shall be relieved of all liability hereunder.
(p) In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the parties hereto, the Escrow Agent shall have the right to interplead said parties in good faith is in doubt as any court of competent jurisdiction and request that such court determine the respective rights of such parties with respect to what action it should take hereunderthis Agreement and, upon doing so, the Escrow Agent shall be entitled released from any obligations or liability to retain the Escrowed Property and Interest, if any, until the either party as a consequence of any such claims or demands.
(q) The Escrow Agent shall have received may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents, attorneys, accountants or other experts.
(ir) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination not be responsible for and shall not be under a duty to examine, inquire into or agreement without further question.
(l) The compensation of pass upon the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of validity, binding effect, execution or sufficiency of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemamendment or supplement hereto.
Appears in 1 contract
Sources: Escrow Agreement (Blue Earth, Inc.)
The Escrow Agent. To induce (a) is hereby appointed as Escrow Agent in accordance with the terms and conditions set forth herein, and the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interesthereby accepts such appointment.
(b) This Agreement expressly sets forth all Subject to the duties of other terms and conditions hereof, the Escrow Agent with respect hereby irrevocably declares that it will hold all right, title and interest in and to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Shares and any Other Escrow Agent shall not be bound by Property in escrow upon the provisions of any agreement among the other parties hereto except this Agreementterms set forth herein.
(c) The Escrow Agent shall not be liableconcerned with, except for nor shall it have any duties or obligations under the Agreement of Understanding, but instead its own gross negligence or willful misconduct and, except sole duties shall be to comply with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the this Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (Agreement and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, instructions given in accordance with the terms hereof. Further, including without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow AgentAgent shall not be deemed to have knowledge of any matter set forth in such agreements that has not been set forth in this Escrow Agreement.
(d) The IGC agrees to provide to the Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or such stock powers and other writing delivered to it hereunder in accordance with instruments of transfer as the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith from time to be genuine and may assume time reasonably request for purposes of administering the escrows created hereunder. To that any person purporting end, IGC hereby further grants to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant the following power of attorney: POWER OF ATTORNEY Know all persons by these presents, that the grantor of this power of attorney constitutes and appoints __________as his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stea▇, ▇▇ any and all capacities, to sign any and all instruments of transfer for the advice purposes of counsel the Escrow Agreement, dated as of ________, 2000, among JFAX.▇▇▇, Inc., Integrated Global Concepts, Inc. and ____________, with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Shares or Other Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) such Escrow Agreement), granting unto said attorney-in-fact and accompanied by agent, full power and authority to do and perform to all intents and purposes as the opinion grantor of counsel referred to this power of attorney might do in Section 3(b)) directing delivery of the Escrowed Property person, hereby ratifying and Interest, if anyconfirming all that said attorney-in-fact and agent, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interestits substitute or substitutes, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination may lawfully do or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services cause to be rendered done by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereundervirtue thereof.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce (a) Notwithstanding anything herein to the contrary, the Escrow Agent to act hereunder, it is further agreed shall promptly dispose of all or any part of the Escrow Shares as directed by a writing jointly signed by the Buyer Shareholder Representative and the Seller that:
(a) Buyer. The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property reasonable fees and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties expenses of the Escrow Agent in connection with respect to any its execution and all matters pertinent hereto. No implied duties or obligations performance of this Agreement as set forth on Schedule II hereto shall be read into this Agreement against borne by the Escrow AgentBuyer. The Escrow Agent shall not be bound by the provisions of liable for any agreement among the other parties hereto except act or failure to act under this Agreement.
(c) The , including any and all claims made against the Escrow Agent shall not be liableas a result of its holding the Escrow Shares in its own name, except for its own gross negligence or willful misconduct andmisconduct. The Escrow Agent shall not be liable for, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the Buyer and the Seller shall, severally and not jointly, shall indemnify and hold harmless the Escrow Agent and its directors, employees, officers, agents, successors and assigns against, any losses or claims (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, out-of-pocket expenses) arising out of any action taken or omitted in good faith hereunder and in connection with this Agreement. Without limiting the foregoing, reasonable costs of investigation and counsel fees and expenses which may be imposed on the Escrow Agent shall in no event be liable or reasonably incurred by it in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination acceptance of this Agreement appointment or the resignation performance of the Escrow Agent.
(d) its duties hereunder. The Escrow Agent may decline to act and shall not be entitled liable for failure to rely act if in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered doubt as to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofits duties under this Agreement. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt any notice or advice or make any statement or execute any document in connection with the provisions hereof instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to this Agreement and applicable law and the Escrow Agent is not charged with knowledge of or any duties or responsibilities in connection with any other document or agreement, including without limitation, the Merger Agreement.
(b) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at the addresses set forth herein or at such other address as the parties shall provide, at least thirty days prior to the date specified for such resignation to take effect. In such event the Buyer shall with the approval of the Shareholder Representative, which approval shall not be unreasonably withheld, appoint a successor escrow agent within that thirty-day period; if the Buyer does not designate a successor escrow agent within such period, the Escrow Agent may appoint a successor escrow agent. Upon the effective date of such resignation, the Escrow Fund then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in writing by the Buyer and the Shareholder Representative.
(c) In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the other parties hereto, the Escrow Agent shall have the right to interplead the parties in any court of competent jurisdiction and request that such court determine the respective rights of the parties with respect to this Agreement and, upon doing so, the Escrow Agent shall be released from any obligations or liability to the other parties as a consequence of any such claims or demands.
(d) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. Nothing in this Agreement shall be deemed to impose upon the Escrow Agent any duty to qualify to do business or to act as fiduciary or otherwise in any jurisdiction other than The Commonwealth of Massachusetts. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, inquire into or pass upon the validity, binding effect, execution or sufficiency of this Agreement or of any amendment or supplement hereto.
(e) The Neither the Escrow Agent nor any of its directors, officers or employees shall be liable to anyone for any error of judgment, or for any act done or step taken or omitted to be taken by it or any of its directors, officers or employees, or for any mistake of fact or law, or for anything which it, or any of its directors, officers or employees, may act pursuant do or refrain from doing in connection with or in the administration of this Agreement, unless and except to the advice extent the same constitutes gross negligence or willful misconduct on the part of counsel with respect to any matter relating to this Agreement and the Escrow Agent. In no event shall not the Escrow Agent be liable for any indirect, punitive, special or consequential damages, or any amount of in excess of the value of the Escrow Fund (as of the date of the action taken or omitted in good faith in accordance with such adviceomission giving rise to liability).
(f) The Escrow Agent does not have may consult with, and obtain advice from, legal counsel (including, without limitation, in-house counsel) with respect to any interest in question as to any of the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer provisions hereof or its duties hereunder, or any matter relating hereto, and the Seller opinion of such counsel shall each pay be full and complete authorization and protection in respect of any action taken, suffered or reimburse omitted by the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to in good faith in accordance with the Escrowed Property incurred in connection herewith opinion and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way directions of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agentcounsel.
(g) The Escrow Agent makes no representation as shall not be deemed to the validity, value, genuineness or the collectability have notice of any security fact, claim or demand with respect hereto unless actually known by an officer charged with responsibility for administering this Agreement or unless in writing received by the Escrow Agent and making specific reference to this Agreement.
(h) No provision of this Agreement shall require the Escrow Agent to expend or risk its own funds, or to take any legal or other document action hereunder which might in its judgment involve it in, or instrument held by require it to incur in connection with the performance of its duties hereunder, any expense or delivered any financial liability unless it shall be furnished with indemnification acceptable 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation Any permissive right of the Escrow Agent will to take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent any action hereunder shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoconstrued as duty.
(j) All indemnifications contained in this Agreement shall survive the resignation or removal of the Escrow Agent, and shall survive the termination of this Agreement.
(k) The Escrow Agent is not responsible for the recitals appearing in this Agreement. The recitals shall be deemed to be statements of the Buyer and the Shareholders.
(l) The Escrow Agent has no responsibility for the sufficiency of this Agreement for any purpose. Without limiting the foregoing, if any security interest is referred to herein, the Escrow Agent shall have no responsibility for for, and makes no representation or warranty as to, the contents creation, attachment or perfection of any writing such security interest or the sufficiency of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereofthis Agreement therefor.
(km) Nothing in this Agreement shall obligate the Escrow Agent to qualify to do business or act in any jurisdiction in which it is not presently qualified to do business, or be deemed to impose upon the Escrow Agent the duties of a trustee. The duties of the Escrow Agent under this Agreement are strictly ministerial in nature.
(n) In no event shall the Escrow Agent have any liability for any failure or inability of any of other party to perform or observe its duties under the Agreement, or by reason of a breach of this Agreement by any other party. In no event shall the Escrow Agent be obligated to take any action against any other party to compel performance hereunder.
(o) The Escrow Agent shall in no instance be obligated to commence, prosecute or defend any legal proceedings in connection herewith.
(p) Whenever the terms hereof call for any notice, payment or other action on a day which is not a business day, such payment or action may be taken, or such notice given, as the case may be, on the next succeeding business day. As used herein, "business day" shall mean any day other than a Saturday or Sunday, or any other day on which the Escrow Agent is closed for business.
(q) In the event of any disagreement between the Buyer and the Seller resulting in adverse claims ambiguity or demands being made in connection with the Escrowed Property and Interest, if anyuncertainty under this Agreement, or in the event that any notice, instruction, or other communication received by the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to may, in its discretion, refrain from taking action, and may retain the Escrowed Property and Interest, if anyEscrow Fund, until and unless it receives written instruction signed by all Interested Parties which eliminates such uncertainty or ambiguity.
(r) If at any time Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial administrative process which in any way relates to or affects the Escrow Fund (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the Escrow Fund), Escrow Agent is authorized to comply therewith in any manner as it or its legal counsel deems appropriate; and if the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion complies with any such judicial or administrative order, judgment, decree, writ or other form of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interestjudicial or administrative process, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation not be liable to any of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 to any other person or entity notwithstanding that though such parties' behalf unless the Escrow Agent shall first order, judgment, decree, writ or process may be subsequently modified, annulled, set aside, vacated, found to have given its specific written consent theretobeen without proper jurisdiction, or otherwise determined to have been without legal force or effect.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Escrow Agreement (Blais John F Jr)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred to or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Fund is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from the Fund or any entity acting on the Fund’s behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among of its duties hereunder.
(b) 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 Escrow 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 Escrow 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, Escrow Agent shall not be liable to any of the parties hereto except this Agreementor 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.
(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 or willful misconduct andon its part, except as such is proved in a court or tribunal of competent jurisdiction. In no event shall the Escrow Agent be liable (i) for acting in accordance with respect to claims based or conclusively relying upon any instruction, notice, demand, certificate or document from the Fund or any entity acting on behalf of the Fund, (ii) for any indirect, cumulative, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated unless such damages arise from the gross negligence, intentional acts, or willful misconduct of the Escrow Agent, or (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, unless the Escrow Agent’s selection of such nominees, correspondents, designees, agents, subagents or subcustodians of the Escrow Agent involves gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation on part of the Escrow Agent.
(d) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Funds and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Funds for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Funds an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder.
(e) The Escrow Agent may consult with legal counsel of its own choosing as to any matter relating to this Escrow Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
(f) The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(g) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eh) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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 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. Uninvested funds held hereunder shall not earn or accrue interest.
(and any successor escrow agentj) may at At any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged may request an instruction in writing, in English from the Fund and may, at its own option, include in such request the course of action it proposes to take and from the date on which it proposes to act, regarding any and all further obligations matter arising in connection with this Agreementits duties and obligations hereunder. The resignation of Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the Escrow Agent will take effect on the date sends such request for instructions and its proposed course of action to Fund by fax or electronic mail (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdictionreceipt confirmed) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation by overnight courier, and provided further that, prior to the other parties hereto. Upon the appointment of a successor escrow agentso acting, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation the written instructions from the Fund to refrain from taking the proposed action.
(k) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of a successor escrow agentsecurities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent's sole responsibility after , absent gross negligence as proved in a court or tribunal of competent jurisdiction, shall not be responsible or liable in the Resignation Date event such communication is not an authorized or authentic communication of the Fund or is not in the form the Fund sent or intended to send (whether due to fraud, distortion or otherwise). The Fund shall be to safekeep indemnify the Escrowed Property Escrow Agent against any loss, liability, claim or expense (including legal fees and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoexpenses) it may incur with its acting in accordance with any such communication.
(jl) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Funds. The Escrow Agent may, but is not obligated to, inform the Fund in writing of the ambiguity. If the Fund provides the Escrow Agent with written instructions which eliminates such ambiguity or uncertainty, the Escrow Agent shall comply with such written instructions.
(m) In the event of any dispute between or conflicting claims among the Fund and any other person or entity with respect to any Escrow Funds, 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 Funds so long as such dispute or conflict shall continue, and the Escrow Agent shall not be or become liable in any way to the Fund or any other person for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to 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 satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Escrow Agent shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed an obligation of, the Fund.
(n) 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 conclusively rely without any liability upon the contents thereof.
(ko) In the event of The Escrow Agent does not have any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or interest in the event that Escrow Funds deposited hereunder but is serving as escrow holder only and having only possession thereof. The Fund shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrow Funds incurred in good faith connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in doubt the way of such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Fund will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. This paragraph shall survive notwithstanding any termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(p) The Escrow Agent shall provide to the Fund monthly statements identifying transactions, transfers or holdings of Escrow Funds and each such statement shall be deemed to be correct and final upon receipt thereof by the Fund unless the Escrow Agent is notified in writing, by the Fund, to the contrary within thirty (30) business days of the date of such statement.
(q) The Fund shall deliver to the Escrow Agent a list of authorized signatories, as set forth in the attached Schedule 2 hereto, with respect to what action it should take any notice, certificate, instrument, demand, request, direction, instruction, waiver, receipt, consent or other document or communication required or permitted to be furnished to the Escrow Agent hereunder, and the Escrow Agent shall be entitled to retain the Escrowed Property and Interest, if any, rely on such list with respect to any party until a new list is furnished by such party to the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if anyAgent. Furthermore, in which the event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, funds transfer instructions are given (other than in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer writing at the time of execution of this Agreement Agreement), whether in writing, by fax or otherwise, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on Schedule 3 hereto, and $2,000 annually thereafter, together with reimbursement the Escrow Agent may rely upon the confirmations of anyone purporting to be the person or persons so designated. The persons and telephone numbers designated for all reasonable expenses, disbursements and advances incurred or made such call-backs may be changed only in a writing actually received by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunderAgent.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Subscription Escrow Agreement (Superfund Gold, L.P.)
The Escrow Agent. To induce Fees ----
3.01 The Escrow Agent shall be entitled to charge reasonable fees and disbursements in connection with acting in that capacity hereunder, which fees and disbursements shall be borne by Communicate. Indemnity ---------
3.02 Each of Communicate and SIDEN jointly and severally covenants to indemnify and save harmless the Escrow Agent to act from and against any and all claims, actions, causes of action, damages, costs (including, without limitation, the costs of any interpleader action), expenses and liabilities arising from or in any way connected with the Escrow Agent acting in that capacity hereunder, provided that the Escrow Agent has not committed an act of gross negligence or wilful misconduct in carrying out its obligations hereunder. Duty of Care ------------
3.03 The Escrow Agent shall have no duties except those which are expressly set forth herein and shall have no responsibility in respect of loss of the Escrow Documents except the duty to exercise such care in the safekeeping thereof as it would exercise if the Escrow Documents were the property of the Escrow Agent. Other Rights and Duties
3.04 It is further acknowledged and agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties and obligations of the Escrow Agent with respect to any and all matters pertinent heretoshall be determined solely by the express provisions of this Agreement. No implied duties covenants, duties, responsibilities or obligations shall be read into this Agreement against in relation to the Escrow Agent. The Agent and the Escrow Agent shall not be bound by the provisions of any other agreement among the other parties hereto except this Agreement.between Communicate and SIDEN;
(cb) The the Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 action taken, suffered or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed omitted by it in good faith and reasonably believed to be within its authority, rights, discretions or powers;
(c) the Escrow Agent may act upon written notice, certificate, instructions or other document issued to it and executed by a party believed to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof act on behalf of a party has been duly authorized to do so.;
(d) the Escrow Agent may act through its duly appointed agents and attorneys;
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise bound by any party as to the wisdom in selling notice of claim or retaining demand or taking any waiver, modification, amendment, termination or refraining from any action with respect to any securities or other property deposited hereunder.rescission of this Agreement; and
(if) The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall not be discharged required to defend any legal proceedings which may be commenced with respect to, or arising out of, this Agreement or commence any legal proceedings unless it is indemnified against the cost and expense of and from such defence or action to its sole satisfaction including, without limitation, the posting of any and all further obligations arising in connection with this Agreement. The resignation of security which the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretomay require.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Escrow Agreement (Troyden Corp)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and 6.8.1 shall not be required or under any liability or obligation to invest take any Escrowed Property held hereunder except as directed in legal action under this Escrow Agreement or to require that the Companies comply with any provision of this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.;
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent 6.8.2 shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence required or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation, under any liability for any delays (not resulting from its gross negligence or willful misconduct) in obligation to monitor or enquire as to the investment or reinvestment performance of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of Companies’ obligations under this Escrow Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent Share Exchange Agreement and shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof assume without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine enquiry that each such Company is duly performing and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.observing all its respective obligations;
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and 6.8.3 shall not be liable for non-delivery of the PPRW Deliveries, LUX Deliveries or CYP Deliveries, or for the failure of any action taken person to make any payment of funds;
6.8.4 shall not be bound to attempt to enforce delivery of the PPRW Deliveries, LUX Deliveries or omitted CYP Deliveries;
6.8.5 shall not be regarded or treated for any purpose as having any notice or knowledge of any of the provisions of any arrangements relevant to the transactions contemplated or referred to in good faith this Escrow Agreement which are not expressly set out in accordance with such advice.
(f) The this Escrow Agent does not Agreement, and, except as provided in Section 7.4 below, shall be entitled to have any interest regard only to the express terms of this Escrow Agreement in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer discharge of its duties under this Escrow Agreement and the Seller exercise of any of its rights under this Escrow Agreement;
6.8.6 shall each pay have no obligation to ensure that the terms of this Escrow Agreement are consistent with the terms of the Share Exchange Agreement;
6.8.7 may, in relation to this Escrow Agreement, act on the opinion or reimburse advice of, or any information obtained from, any lawyer or other professional person whether obtained by the Escrow Agent upon request for one-half of or any transfer taxes or other taxes relating to the Escrowed Property incurred in connection herewith Company and shall indemnify not be responsible for any loss occasioned by so acting (whether or not the advice, opinion or information is accurate or authentic or contains some error), and hold harmless any such advice, opinion or information may be sent to or obtained by the Escrow Agent from any amounts that it is obligated to pay in the way of by such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that means as the Escrow Agent shall thinks fit;
6.8.8 may refrain from doing anything which would or might be responsible for income reporting only contrary to any law of any jurisdiction or any directive or regulation of any agency or any state or supranational body and may do anything which is necessary to comply with respect any such law, directive or regulation;
6.8.9 may refrain from doing anything in the performance of its duties under this Escrow Agreement which would or might otherwise render it liable to income earned on investment any person or require it to incur any financial liability or require it to use or risk its own funds if it believes that reimbursement of the Escrowed Property and such funds or adequate indemnity against such risk is not responsible for any other reporting. This Section 5(f) assured;
6.8.10 shall survive notwithstanding any termination of this Agreement or promptly seek clarification from the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or Companies in the event that it believes its correct course of action under the terms of this Escrow Agent in good faith Agreement is in doubt as to what action it should take hereunder, the Escrow Agent unclear; and
6.8.11 shall not be entitled to retain the Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, liable or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services deemed to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 in default for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred any failure or made by the Escrow Agent delay in performance of any duty under this Escrow Agreement arising in whole or in part from or caused in whole or in part by circumstances beyond its duties hereunder (including direct and reasonable feescontrol including, expenses and disbursements without limitation, acts of its counsel). All fees and expenses God, partial or complete failure of the Escrow Agent hereunder shall be paid by the Buyer. Any fees electrical power or expenses computer services or communication services, acts of the Escrow Agent civil or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectusesmilitary authority, press releasessabotage, reports and promotional material terrorism, war, civil disturbance or riot, strike or other similar materials which mentions the Escrow Agent's name industrial dispute, national emergency, flood, earthquake, fire or the rights, powersother catastrophe, or duties of the Escrow Agent shall be issued by the other parties hereto governmental, judicial or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent theretoregulatory order, rule, regulation, judgment or act.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Escrow Agreement (Premier Power Renewable Energy, Inc.)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not have only those duties as are specifically and expressly provided herein, which shall be under deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no knowledge of, nor any duty requirement to give comply with, the Escrowed Property held by it hereunder terms and conditions of any greater degree of care than it gives its own similar property and other agreement between the Parties, nor shall not the Escrow Agent be required to invest determine if any Escrowed Property held hereunder except as directed in this AgreementParty has complied with any other agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all Notwithstanding the duties terms of any other agreement between the Escrow Agent with respect to any Parties, the terms and all matters pertinent hereto. No implied duties or obligations shall be read into conditions of this Agreement against shall control the actions of the Escrow Agent. The Escrow Agent shall not be bound may conclusively rely upon any written notice, document, instruction or request delivered by the provisions Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer kind and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in be under no event be liable in connection with its investment duty to inquire into or reinvestment investigate the validity, accuracy or content of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demanddocument, notice, instrument instruction or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofrequest. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken taken, suffered or omitted to be taken by it in good faith in accordance with such advice.
(f) except to the extent that the Escrow Agent’s gross negligence or willful misconduct was the cause of any direct loss to either Party. The Escrow Agent does not have may execute any interest in of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse event the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validityreceives instructions, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection from any Party hereto which conflict with the Escrowed Property and Interest, if any, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderprovisions of this Agreement, the Escrow Agent shall be entitled either to retain the Escrowed Property and Interest, if any, (a) refrain from taking any action until the Escrow Agent it shall have received (i) be given a Final Determination (as defined in Section 3(b) and accompanied written direction executed by the opinion Authorized Representatives of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, Juniper which eliminates such conflict or (iib) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, file an action in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreementinterpleader. The Escrow Agent shall act on such Final Determination have no duty to solicit any payments which may be due it or agreement without further question.
(l) The compensation of the Fund, including the Escrow Deposit nor shall the Escrow Agent (as payment have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. Anything in full) for this Agreement to the services to be rendered by contrary notwithstanding, in no event shall the Escrow Agent hereunder shall be the amount liable for special, incidental, punitive, indirect or consequential loss or damage of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafterany kind whatsoever (including lost profits), together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by even if the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses has been advised of the Escrow Agent hereunder shall be paid by the Buyer. Any fees likelihood of such loss or expenses damage and regardless of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunderform of action.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Escrow Agreement (Fifth Third Capital Holdings, LLC)
The Escrow Agent. To induce (1) Notwithstanding anything herein to the contrary, the Escrow Agent to act hereunder, it is further agreed shall dispose of all or any part of the Escrow Shares as directed by a writing jointly signed by the Buyer Shareholders' Agent and the Seller that:
Parent within two (a2) business days of receipt of such notice. The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property reasonable fees and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties expenses of the Escrow Agent in connection with respect to any the preparation of this Escrow Agreement and all matters pertinent hereto. No implied duties or obligations its execution and performance of this Escrow Agreement as set forth on SCHEDULE II hereto shall be read into this Agreement against borne out of the Escrow AgentShares. The Escrow Agent shall not be bound by liable for any act or failure to act under this Escrow Agreement, including any and all claims made against the provisions Escrow Agent as a result of any agreement among its holding the other parties hereto Escrow Shares or Escrow Funds in its own name, except this Agreement.
(c) The for its own negligence, bad faith or willful misconduct. Subject to the foregoing, the Escrow Agent shall not be liableliable for, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and Parent and the Seller Shareholders shall, severally jointly and not jointlyseverally, indemnify and hold harmless the Escrow Agent and its directors, employees, officers, agents, successors and assigns against any losses or claims (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees out-of-pocket expenses and disbursements, attorney fees) arising out of any action taken or omitted hereunder and in connection with this Agreement. Without limiting the foregoing, reasonable costs of investigation and counsel fees and expenses which may be imposed on the Escrow Agent shall in no event be liable or reasonably incurred by it in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination acceptance of this Agreement appointment or the resignation performance of the Escrow Agent.
(d) its duties hereunder. The Escrow Agent may decline to act and shall not be entitled liable for failure to rely act if in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered doubt as to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofits duties under this Escrow Agreement. The Escrow Agent may act in reliance upon any instrument or signature (including wire transfer instructions) believed by it in good faith to be genuine and may assume that any person purporting to give receipt any notice or advice or make any statement or execute any document in connection with the provisions hereof instruction hereunder, believed by it to be authorized, has been duly authorized to do so.
(e) . The Escrow Agent may act pursuant Agent's duties shall be determined only with reference to the advice express duties set forth in this Escrow Agreement, each of counsel with respect to any matter relating to this Agreement which duties are ministerial in nature, and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer applicable law and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon deemed to advise be a fiduciary and is not charged with knowledge of or any party as duties or responsibilities in connection with any other document or agreement, including without limitation, the Merger Agreement; and the parties hereto agree that the use of defined terms incorporated by reference to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or Merger Agreement is solely for the convenience of the other property deposited hereunder.
(i) The Escrow Agent (parties and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged may rely on the use of and from defined terms in any and all further obligations arising in connection with this Agreementcommunication received by it. The resignation of In no event will the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed be liable for punitive, special or consequential damages or losses (including a court of competent jurisdictionlost profits) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agentwhatsoever, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date even if the Escrow Agent has not received a designation been informed of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt likelihood of a designation of successor escrow agent such damages or a joint written disposition instruction by the other parties heretolosses.
(j2) The Escrow Agent shall have no responsibility the right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at the addresses set forth herein or at such other address as the parties shall provide, at least thirty days prior to the date specified for the contents of any writing of any third party contemplated herein as a means such resignation to resolve disputes and may rely without any liability upon the contents thereof.
(k) take effect. In the such event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection Parent shall with the Escrowed Property and Interestapproval of the Shareholders' Agent, which approval shall not be unreasonably withheld, appoint a successor escrow agent within that thirty-day period; if any, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderParent does not designate a successor escrow agent within such period, the Escrow Agent shall be entitled to retain may appoint a successor escrow agent. Upon the Escrowed Property and Interesteffective date of such resignation, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) Shares and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered Fund then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in writing by Parent and the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafterShareholders' Agent. If no successor escrow agent is appointed as provided herein, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance may apply to a court of its duties hereunder competent jurisdiction for appointment of a successor escrow agent.
(including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of 3) In the event that the Escrow Agent hereunder shall should at any time be paid by the Buyer. Any fees (i) confronted with inconsistent or expenses of the Escrow Agent conflicting claims or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued demands by the other parties hereto or on such parties' behalf unless (ii) unsure of its duties hereunder, the Escrow Agent shall first have given its specific written consent theretothe right to inter plead the parties in any Delaware court or any court of competent jurisdiction and request that such court determine the respective rights of the parties with respect to this Escrow Agreement and, upon doing so, the Escrow Agent shall be released from any obligations or liability to the other parties as a consequence of any such claims or demands. The Escrow Agent may consult counsel satisfactory to it, including in-house counsel, and will be protected in respect of any action taken or omitted in reliance thereon.
(n4) The other parties hereto authorize Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. Nothing in this Escrow Agreement shall be deemed to impose upon the Escrow AgentAgent any duty to qualify to do business in any jurisdiction other than Delaware or to act as fiduciary. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, for any securities held hereunderinquire into or pass upon the validity, to use the services binding effect, execution or sufficiency of this Escrow Agreement or of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemamendment or supplement hereto.
Appears in 1 contract
The Escrow Agent. To induce Notwithstanding anything herein to the contrary, the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under promptly dispose of all or any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties part of the Escrow Agent with respect to any Fund as directed by a writing signed by the Escrow Representative and all matters pertinent heretoBuyer. No implied duties or obligations shall be read into this Agreement against The reasonable fees and expenses of the Escrow Agent, including legal fees incurred in connection with the preparation of this Agreement and including the fees and disbursements of its counsel, if any, in connection with its performance of this Agreement shall be paid from the income on the Escrow Fund and, if and to the extent not so paid, shall be borne equally by the Holders and Buyer. The Escrow Agent shall not be bound entitled to reimbursement on demand for all expenses incurred in connection with the administration of this Agreement or the escrow created hereby which are in excess of its compensation for normal services hereunder, including without limitation, payment of any legal fees and expenses incurred by the provisions Escrow Agent in connection with resolution of any agreement among the other parties hereto except this Agreement.
(c) dispute hereunder. The Escrow Agent Agent, its directors, officers and employees shall not be liable, liable for any act or omission to act under this Escrow Agreement except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreementmisconduct. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent shall not be entitled to rely liable for, and Buyer, the Company and the Holders shall jointly and severally indemnify the Escrow Agent against, any losses or claims arising out of or any action taken or omitted in good faith hereunder and upon any orderthe advice of counsel, judgment, certification, demand, notice, instrument or other writing delivered including in-house counsel. The Escrow Agent may decline to it hereunder act and shall not be liable for failure to act if in accordance with the terms hereof without being required doubt as to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofits duties under this Agreement. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and shall have no responsibility for determining the accuracy thereof, and may assume that any person purporting to give receipt any notice or advice or make any statement or execute any document in connection with the provisions hereof instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so.
(e) . The Escrow Agent may act pursuant to the advice of counsel Agent's duties shall be determined only with respect to any matter relating reference to this Escrow Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only applicable laws, and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half is not charged with knowledge of or any transfer taxes duties or other taxes relating to the Escrowed Property incurred responsibilities in connection herewith and shall indemnify and hold harmless the Escrow Agent from with any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) agreement, including the Stock Purchase Agreement. The Escrow Agent shall not be called upon obligated to advise take any party as legal or other action hereunder which might in its judgment involve any expense or liability unless it shall have been furnished with acceptable indemnification. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages. Buyer, the Company and the Holders jointly and severally, agree to the wisdom in selling assume any and all obligations imposed now or retaining or taking or refraining from hereafter by any action applicable tax law with respect to any securities or other property deposited hereunder.
(i) The the payment of Escrow Agent (Funds under this Agreement, and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property to indemnify and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon hold the Escrow Agent shall harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be discharged of and from assessed against the Escrow Agent in any and all further obligations arising in connection with such payment or other activities under this Agreement. The resignation of Buyer, the Company and the Holders undertake to instruct the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier in writing with respect to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes withholding and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the Buyer other taxes, assessments or other governmental charges, certifications and the Seller resulting in adverse claims or demands being made governmental reporting in connection with its acting as Escrow Agent under this Agreement. Buyer, the Escrowed Property Company and Interestthe Holders, if anyjointly and severally, or in the event that agree to indemnify and hold 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 Escrowed Property and Interest, if harmless from any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under receive any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives fees for its own similar property and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 services but shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement reimbursed for all reasonable expenses, disbursements disbursements, and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable feeshereunder, expenses and disbursements of its counsel). All fees which compensation and expenses shall be paid out of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunderFund.
(mb) No prospectusesThe Escrow Agent may resign and be discharged from its duties hereunder at any time by giving written notice of such resignation to the Seller and the Buyer specifying a date (not less than thirty (30) days after giving of such notice) when such resignation shall take effect. Upon such notice, press releasesthe Buyer and the Seller shall appoint a new Escrow Agent who shall replace the resigning Escrow Agent hereunder upon the resignation date specified in such notice. If the Buyer and the Seller are unable to agree upon a successor escrow agent within thirty (30) days after such notice, reports and promotional material or other similar materials which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued entitled to appoint its successor. The Seller and the Buyer shall have the right at any time upon their mutual consent to substitute a new Escrow Agent by the other parties hereto or on such parties' behalf unless giving notice thereof to the Escrow Agent shall first have given its specific written consent theretothen acting.
(nc) The other Escrow Agent shall have no duties or responsibilities whatsoever with respect to the Escrow Fund except 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, request, consent, certificate, document, letter, telegram, order, resolution or signature believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties hereto authorize duly authorized to do so. The Escrow Agent shall have no responsibility for the contents of any such writing contemplated herein and may rely without any liability upon the contents thereof.
(d) The Escrow Agent shall not be liable for any action taken or omitted 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, or if taken or omitted to be taken in accordance with advice of counsel (which counsel may be of the Escrow Agent's own choosing), and shall not be liable for any securities held hereunder, to use the services mistake of fact or error of judgment or for any acts or omissions of any United States central securities depository it deems appropriatekind except for its own fraud, including, but not limited to, willful misconduct or gross negligence.
(e) Each of the Depository Trust Company Seller and the Federal Reserve Book Entry SystemBuyer and their successors and assigns agree to indemnify the Escrow Agent and hold it harmless against any and all damages, losses, liabilities or expenses (including reasonable attorneys' fees and expenses) incurred by it hereunder as a consequence of such party's action, and the parties agree jointly to indemnify the Escrow Agent and hold it harmless against any and all damages, losses, liabilities or expenses (including reasonable attorneys' fees and expenses) incurred by it hereunder that are not a consequence of any party's action, except in either case for damages, losses, liabilities or expenses incurred by the Escrow Agent resulting from its own fraud, willful misconduct or gross negligence.
Appears in 1 contract
The Escrow Agent. To induce Commerce Bank/North is hereby appointed by the Authority under the direction of the Borrower to serve as Escrow Agent hereunder. The Escrow Agent, shall act on behalf of the Authority under this Bond Agreement as specifically provided for herein only insofar as its duties are expressly set forth and shall not have any implied duties but may exercise such additional powers as are reasonably incidental thereto. Neither the Escrow Agent nor any of its officers, directors or employees shall be liable for any action taken or omitted to act hereunder, be taken by it is further agreed by the Buyer and the Seller that:
(a) hereunder or in connection herewith except for its or their own gross negligence or willful misconduct. The Escrow Agent shall not be under any a duty to give examine or pass upon the Escrowed Property held validity, effectiveness or genuineness of any Loan Document or any direction, report, affidavit, certificate, opinion or other instrument, document or agreement related thereto, and shall be entitled to assume that the same are valid, effective, genuine and what they purport to be. The Escrow Agent may consult with legal counsel selected by it, and any action taken or suffered by it hereunder in accordance with the opinion of such counsel shall be full justification and protection to it. The Escrow Agent shall have the same rights and powers as any greater degree of care than other bank or lender and may exercise the same as though it gives its own similar property and shall were not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent Agent; and it may accept deposits from, lend money to and generally engage in any kind of business with respect to any and all matters pertinent heretothe Borrower as though it were not the Escrow Agent. No implied duties or obligations The Borrower shall be read into this Agreement against responsible for the fees and costs of the Escrow Agent. The Escrow Agent shall not be bound by the provisions of obliged to act or perform hereunder or to incur any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer expenses in connection herewith unless and the Seller shall, severally and not jointly, indemnify and hold harmless until the Escrow Agent (and any successor escrow agent) from and against one-half of any and has been properly indemnified by the Borrower for all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event actions to be liable taken or expenses to be incurred in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving duties as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Bond Agreement (NeoStem, Inc.)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller Sellers that:
(a) 11.1 The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds Escrowed Property held hereunder shall not earn or accrue interest.
(b) 11.2 This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties Parties hereto except this Agreement.
(c) 11.3 The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, Sellers shall jointly and severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) 11.3 shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) 11.4 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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) 11.5 The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) 11.6 The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has having only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein then in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) 11.6 shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) 11.7 The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) 11.8 The Escrow Agent shall not be called upon to advise any party 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) 11.9 The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller other Parties hereto in writing or to any court of competent jurisdictionjurisdiction pursuant to an action in interpleader, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the earlier of the date (the "Resignation Date") which is of the earlier to occur of: (i) the date appointment of a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties Parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller Sellers on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoParties hereto or a Final Determination.
(j) 11.10 The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) 11.11 In the event of any disagreement between the Buyer and the Seller Sellers resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if anyProperty, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a joint written agreement instructions executed by the Buyer and the Seller Sellers directing delivery of the Escrowed Property and Interest, if anyProperty, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreementjoint written instructions. The Escrow Agent shall act on such Final Determination or agreement joint written instructions without further question.
(l) 11.12 The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer 2,000.00 at the time of execution of this Agreement and $2,000 annually thereafter50.00 per transfer of the Escrow Shares, together with and reimbursement 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). All Buyer shall pay all of such fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunderidentified in this Section 11.12.
(m) 11.13 No prospectuses, press releases, reports and promotional material material, or other similar materials which mentions mention in any language the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties Parties hereto or on such partiesParties' behalf unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize ; provided, however, that the Escrow AgentAgent acknowledges that Buyer may file a copy of this Agreement as an exhibit with Buyer's filings required under the Securities Exchange Act of 1934, for any securities held hereunderas amended, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry SystemEscrow Agent consents to the appearance of its name in such filings.
Appears in 1 contract
Sources: Stock Purchase Agreement (Team Inc)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property duties, responsibilities and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties 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 Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Company or the Trustee is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Company or the Trustee or an entity acting on its behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among of its duties hereunder.
(b) 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 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 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, Escrow Agent shall not be liable to any of the parties hereto except this Agreementor 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.
(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 in the absence of bad faith, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Company or Trustee or any entity acting on behalf of the Company and the Trustee, (ii) for any successor escrow agent) from and against one-half of any and all lossesindirect, liabilitiesconsequential, claims, actions, punitive or special damages, regardless of the form of action and expenseswhether or not any such damages were foreseeable or contemplated, including reasonable attorneys' fees and disbursements(iii) for the acts or omissions of its nominees, arising out of and in connection with this Agreement. Without limiting correspondents, designees, agents, subagents or subcustodians, (iv) for the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation, limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property Escrow Property, or any loss of interest or income incident to any such delays. This Section 5(c, or (v) shall survive notwithstanding any termination for an amount in excess of this Agreement or the resignation value of the Escrow AgentProperty, valued as of the date of deposit, but only to the extent of direct money damages.
(d) If any fees, reasonable out-of-pocket expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not paid within 10 Business Days after such expenses or costs are due, the Escrow Agent may reimburse itself therefor from the Escrow Property and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Property an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder.
(e) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Company, as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
(f) The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(g) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eh) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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 shall not be under any duty to give the Escrow 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 in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(j) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent bad faith, gross negligence or willful misconduct, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Company or the Trustee or is not in the form the Company and the Trustee sent or intended to send (whether due to fraud, distortion or otherwise). The Company and the Trustee shall indemnify the Escrow Agent against any loss, liability, claim or reasonable out-of-pocket expense (including reasonable out-of-pocket legal fees and expenses) it may incur with its acting in accordance with any such communication.
(k) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Company or the Trustee, which eliminates such ambiguity or uncertainty.
(l) In the event of any dispute between or conflicting claims among the Company and the Trustee and any successor escrow agent) may at other person or entity with respect to any time resign Escrow Property, 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 by delivering the Escrowed Property and Interestdispute or conflict shall continue, if any, to any successor escrow agent jointly designated by the Buyer and the Seller Escrow Agent shall not be or become liable in writing any way to the Company or the Trustee for failure or refusal to any comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to 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, whereupon which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall be discharged of have received security or an indemnity satisfactory to it sufficient to hold it harmless from and from against any and all further obligations arising in connection with this Agreementlosses which it may incur by reason of so acting. The resignation Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the Escrow Agent will take effect on rights of the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including parties by a court of competent jurisdiction) , and that the time for appeal from such order, judgment or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties heretodecree has expired without an appeal having been filed with such court. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the The Escrow Agent has not received a designation of a successor escrow agentshall act on such court order and legal opinions without further question. The Escrow Agent may, the Escrow Agent's in addition, elect, in its sole responsibility after the Resignation Date discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The reasonable costs and reasonable out-of-pocket expenses (including attorneys’ fees and expenses) incurred in connection with such proceeding shall be to safekeep paid by, and shall be deemed a sole obligation of the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoCompany.
(jm) 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 conclusively rely without any liability upon the contents thereof.
(kn) In The Escrow Agent does not have any interest in the event of Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Company shall pay or reimburse the Escrow Agent upon request for any disagreement between transfer taxes or other taxes relating to the Buyer and the Seller resulting in adverse claims or demands being made Escrow Property incurred in connection with herewith and shall indemnify and hold harmless the Escrowed Property and Interest, if any, or Escrow Agent from any amounts that it is obligated to pay in the event way of such taxes. The Company shall be treated as the owner of the Escrow Property for U.S. federal income tax purposes. Any payments of income from this Escrow 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 certifications. It is understood that the Escrow Agent in good faith is in doubt as shall only be responsible for income reporting with respect to what action it should take hereunder, income earned on the Escrow Agent shall be entitled to retain the Escrowed Property and Interest, if any, until will not be responsible for any other reporting. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agent shall have received Agent.
(io) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on provide to the Company monthly statements identifying transactions, transfers or holdings of Escrow Property and each such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services statement shall be deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be Company and the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 Trustee unless the Escrow Agent is notified in writing, by the Company and the Trustee, to the contrary within thirty (30) Business Days of the date of such statement. The Company acknowledges that regulations of the Comptroller of the Currency grant the parties the right to receive brokerage confirmations of the security transactions as they occur. The Company specifically waives such notification to the extent permitted by law and will receive periodic cash transaction statements which will detail all investment transactions. Except as otherwise provided hereunder or agreed in writing among the parties hereto, the Company shall first have given its specific written consent thereto.
(n) The other parties hereto authorize retain the Escrow Agentauthority to institute, for participate and join in any plan of reorganization, readjustment, merger or consolidation with respect to the issuer of any securities held hereunder, and, in general, to use the services of exercise each and every other power or right with respect to each such asset or investment as individuals generally have and enjoy with respect to their own assets and investment, including power to vote upon any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemsecurities.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give deal with the 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 Escrowed Property held hereunder Escrow Shares except as directed in accordance with (i) this Agreement. Uninvested funds held hereunder shall not earn , or accrue interest.
(bii) This Agreement expressly sets forth all the duties of the Escrow Agent written instructions given in conformity with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow AgentAgreement. The Escrow Agent shall not be bound in any other way by the Reorganization Agreement, it being understood that the Escrow Agent's only duties and responsibilities shall be to hold and distribute the Escrow Shares in accordance with the terms of this Agreement. The Escrow Agent shall have no liability with respect to any action taken by it except for its own gross negligence or willful misconduct. The Escrow Agent makes no representations and has no responsibility as to the validity, genuineness or sufficiency of any of the documents or instruments included in the subject matter of the escrow. The Escrow Agent shall be entitled to rely, and shall be protected in acting in reliance upon, any instructions or directions furnished to it in writing or pursuant to any provisions of this Agreement and shall be entitled to treat as genuine, and as the document it purports to be, any letter, paper or other document furnished to it and believed by it to be genuine and to have been signed and presented by the proper party or parties. The Escrow Agent may act in reliance upon the advice of counsel satisfactory to it in reference to any matter in connection with the escrow and shall not incur any liability for any action taken in good faith in accordance with such advice. In no event shall the Escrow Agent be required to notify or obtain the consent, approval, authorization or order of any court or governmental body pursuant to the transactions contemplated by the provisions of any agreement among the other parties hereto except this Agreement.
(b) Acquiror shall pay the Escrow Agent's reasonable annual compensation for the services to be rendered hereunder, agreed to be $750.00.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and have first lien on all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash items held by it hereunder in good faith, in accordance for its compensation and shall not be required to deliver the Escrow Shares deposited with the terms hereof, including without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of it under this Agreement or the resignation of the Escrow Agentunless and until it shall have received full payment for its compensation.
(d) The Escrow Agent shall not be entitled liable to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness anyone whatsoever by reason of any fact stated therein error of judgment or the propriety for any act done or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument step taken or signature believed omitted by it in good faith to be genuine and or for any mistake of fact or law or for anything which it may assume that any person purporting to give receipt do or advice or make any statement or execute any document refrain from doing in connection with herewith unless caused by or arising out of its own gross negligence or willful misconduct. In no event shall 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 Agreement and shall not be liable for any action taken special or omitted in good faith in accordance with such adviceconsequential damages caused by its gross negligence or willful misconduct.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Escrow Agreement (Jones James E)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Radiance shall pay the Escrow Agent's fee for its ordinary services under this Agreement in accordance with the fee schedule set forth on Schedule B attached hereto.
(b) In performing any duties under this Agreement, the Escrow Agent shall not be under any duty to give liable for damages, losses, or expenses, except for gross negligence or willful misconduct on the Escrowed Property held by it hereunder any greater degree part of care than it gives its own similar property and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not incur any such liability for (i) any act or failure to act made or omitted in good faith, (ii) any action taken or omitted in reliance upon any instrument, including any written statement or affidavit provided for in this Agreement that such agent shall in good faith believe to be bound by genuine, or (iii) forgeries, fraud, impersonations, or determining the provisions scope of any agreement among representative authority. In addition, the other parties hereto except Escrow Agent may consult with legal counsel in connection with its duties under this Agreement and shall be fully protected in any act taken, suffered, or permitted by it in good faith in accordance with the advice of counsel. The Escrow Agent is not responsible for determining and verifying the authority of any such person acting or purporting to act on behalf of any party to this Agreement.
(c) If any controversy arises between the parties to this Agreement, or with any other party, concerning the subject matter of this Agreement, its terms or conditions, the Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Escrow Agent shall may hold the Escrow Fund and may wait for settlement of any such controversy by arbitration pursuant to Section 8 hereof, by final appropriate legal proceedings or other means as, in the Escrow Agent's discretion, may be required, despite what may be set forth elsewhere in this Agreement. In such event, the Escrow Agent will not be liableliable for interest or damage. Furthermore, the Escrow Agent may at its option, file an action of interpleader requiring the parties to answer and litigate any claims and rights among themselves. Upon initiating such action, the Escrow Agent shall be fully released and discharged of and from all obligations and liabilities imposed by the terms of this Agreement, except for its own obligations or liabilities arising by reason of the prior gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against on the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation part of the Escrow Agent.
(d) The Holders, to the extent of the Escrow Fund only, and Radiance shall indemnify and hold harmless the Escrow Agent and shall share equally any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and attorneys' fees) which it may incur or which may be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to imposed on it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized performance of the Escrow Agent's duties under this Agreement, including but not limited to do soany litigation arising from this Agreement, but not including losses, claims, damages, liabilities or expenses arising out of gross negligence or willful misconduct on the part of the Escrow Agent.
(e) The Escrow Agent may act pursuant resign at any time upon giving at least 30 days' written notice to the advice parties; provided, however, that no such resignation shall become effective until the appointment of counsel 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 30 days after receiving such notice. If the parties fail to agree upon a successor escrow agent within such time, the 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 deliver an instrument accepting such appointment, and it shall, without further acts, be vested with respect to all the estates, properties, rights, powers and duties of the predecessor Escrow Agent as if originally named as the Escrow Agent. Upon such appointment, the predecessor Escrow Agent shall be discharged from any matter relating to further duties and liability under this Agreement and shall not be liable Agreement, except for any action taken obligations or omitted in good faith in accordance with such adviceliabilities arising by reason of the prior gross negligence or willful misconduct on the part of the Escrow Agent.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse Any company into which the Escrow Agent upon request for one-half of may be merged or with which it may be consolidated, or any transfer taxes or other taxes relating company to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless whom the Escrow Agent from any amounts that it is obligated to pay in the way may transfer a substantial amount of such taxes. Any payments of income from the Escrow Account its escrow business, shall be subject the successor to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned without the execution or filing of any paper or any further act on investment the part of any of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of parties to this Agreement or Agreement, anything herein to the resignation of the Escrow Agentcontrary notwithstanding.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party sell, encumber or otherwise dispose of the Escrow Shares held as to a part of 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 Escrowed Property and InterestFund, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon except that the Escrow Agent shall be discharged shall, upon the written direction of the Holders' Representative and from any and all further obligations arising in connection with this Agreement. The resignation Radiance, effect a sale or other disposition of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: Shares in a transaction involving (i) the date a successor is appointed (including a court receipt by the stockholders of competent jurisdiction) Radiance of cash in any merger or reorganization in exchange or partly in exchange for shares of Common Stock of Radiance; (ii) the date which is 30 days after sale of all or substantially all of the date assets of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer Radiance for cash and the Seller on distribution to stockholders of Radiance of the appointment proceeds of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received sale as a designation of liquidating distribution; or (iii) a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent cash tender offer for all or a joint written disposition instruction by part of the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents shares of any writing Common Stock of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) Radiance. In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or in the event that receipt of cash by the Escrow Agent in good faith is in doubt as to what action it should take hereundera result of any of such transactions or as a result of a Milestone Payment, the Escrow Agent shall be entitled invest and reinvest all cash funds from time to retain time comprising the Escrowed Property and InterestEscrow Fund, if anytogether with the earnings thereon, until in money market savings accounts or certificates of deposit at the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied which are insured by the opinion of counsel referred Federal Deposit Insurance Corporation up to in Section 3(bapplicable limits (a "Money Market Fund")) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation is authorized to liquidate in accordance with its customary procedures any portion of the Escrow Agent (as payment in full) Fund consisting of investments to provide for the services payments required to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of made under this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunderAgreement.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Merger Agreement (Radiance Medical Systems Inc /De/)
The Escrow Agent. To induce The acceptance by the Escrow Agent of the Escrow Agent's duties under this Escrow Agreement is expressly subject to act hereunderthe following terms and conditions, it is further agreed by which the Buyer parties hereto agree shall govern and the Seller thatcontrol with respect to their respective rights, duties, liabilities and immunities:
(a) The Escrow Agent shall not be under any duty to give is acting solely as a stakeholder at the Escrowed Property held by it hereunder any greater degree request of care than it gives its own similar property the Seller and the Buyer and for their convenience and shall not be required to invest incur any Escrowed Property held hereunder liability whatsoever, except as directed in this Agreement. Uninvested funds held hereunder shall not earn for its own willful misconduct or accrue interestbad faith.
(b) This The Escrow Agent may consult with, and obtain advice from, counsel of its own choice in the event of any bona fide question as to any of the provisions hereof or the Escrow Agent's duties hereunder. The Escrow Agent shall incur no liability and shall be fully protected in acting in good faith in accordance with the opinion and instructions of such counsel.
(c) The Escrow Agent or any member of its firm shall be permitted to act as counsel for the Seller in any dispute relating to, or arising from, this Escrow Agreement expressly sets forth all or the duties Asset Purchase Agreement, or any other agreement contemplated thereby.
(d) The Escrow Agent shall not be bound or affected in any way by any notice of modification or cancellation of this Escrow Agreement unless written notice thereof is given to the Escrow Agent by the Seller and the Buyer in accordance with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow AgentSection 11 hereof. The Escrow Agent shall not be bound by the provisions any modifications of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless obligations hereunder unless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and consents in connection with this Agreementwriting thereto. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument notice or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. , provided that the Escrow Agent is delivered proof of service of notice as provided in Section 11 hereof.
(e) The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it in good faith to be genuine and the Escrow Agent may assume that any person purporting to give any notice or receipt or of advice or make any statement or execute any document in connection with the provisions hereof herewith has been duly authorized so to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advicedo.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer Seller and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating Buyer, jointly and severally, agree to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from and against any amounts that it is obligated to pay loss, liability, cost and expense (including attorneys' fees under Section 7(b) hereof or otherwise), claim or demand arising out of, or in connection with, the way performance of such taxes. Any payments its obligations in accordance with the provisions of income from the this Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible Agreement, except for income reporting only with respect to income earned on investment any of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination foregoing arising out of this Agreement the gross negligence, willful misconduct or the resignation bad faith of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
Upon ten (h10) 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver prior written notice to the Buyer Seller and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderBuyer, the Escrow Agent shall be entitled have the absolute right at any time to retain resign as the Escrowed Property Escrow Agent hereunder. If the Escrow Agent exercises such right, the Seller and Interestthe Buyer shall designate a new Escrow Agent hereunder within such ten (10) day period. Upon the effective date of such resignation, if any, until the Escrow Agent shall have received (i) a Final Determination (deliver all property then held by it to such person or entity as defined may be designated in Section 3(b) and accompanied writing by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer Seller and the Seller directing delivery Buyer, whereupon all of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent's name or the rightsduties and obligations hereunder shall cease and terminate. If no such person shall have been designated by such time, powers, or all duties and obligations of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless nevertheless terminate and the Escrow Agent shall first have given deposit the Escrowed Shares with the clerk of the court in the jurisdiction in which it maintains its specific written consent theretoprincipal office.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce 6.1 Notwithstanding anything herein to the contrary, the Escrow Agent to act hereunder, it is further agreed shall promptly dispose of all or any part of the Escrow Shares/Escrow Funds as directed by a writing jointly signed by the Buyer DSA Representative and SM&A. The reasonable fees and expenses of the Seller that:
Escrow Agent (aas set forth on the fee schedule attached hereto as Schedule 3) in connection with its performance of this Agreement shall be borne by SM&A. The Escrow Agent shall not be liable for any act or omission to act under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth , including any and all the duties of claims made against the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against as a result of its holding the Escrow Agent. The Shares/Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liableFunds in its own name, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreementmisconduct. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent shall not be entitled liable for, and the Shareholders (only to rely the extent of their proportionate share of the Escrow Shares/Escrow Funds) and SM&A shall jointly and severally indemnify the Escrow Agent against, any losses or claims (including reasonable out-of-pocket expenses) arising out of, any action taken or omitted in good faith hereunder or upon any order, judgment, certification, demand, notice, instrument or other writing delivered the advice of counsel. The Escrow Agent may decline to it hereunder act and shall not be liable for failure to act if in accordance with the terms hereof without being required doubt as to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofits duties under this Agreement. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt any notice or advice or make any statement or execute any document in connection with the provisions hereof instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so.
(e) . The Escrow Agent may act pursuant to the advice of counsel Agent's duties shall be determined only with respect to any matter relating reference to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only applicable laws, and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half is not charged with knowledge of or any transfer taxes duties or other taxes relating to the Escrowed Property incurred responsibilities in connection herewith and shall indemnify and hold harmless the Escrow Agent from with any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company Merger Agreement.
6.2 The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at the addresses set forth herein or at such other address as the parties shall provide, at least 30 days prior to the date specified for such resignation to take effect. In such event SM&A and the Federal Reserve Book Entry SystemDSA Representative shall by agreement appoint a successor escrow agent within said 30 days; if SM&A and the DSA Representative do not agree upon the selection of a successor escrow agent within such period, the Escrow Agent may appoint a successor escrow agent. Upon the effective date of such resignation, the Escrow Shares and the Escrow Funds, together with all other property then held by the Escrow Agent hereunder, shall be delivered by it to such successor escrow agent or as otherwise shall be designated in writing by SM&A and the DSA Representative.
6.3 In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the parties hereto, the Escrow Agent shall have the right to interplead said parties in any court of competent jurisdiction and request that such court determine the respective rights of such parties with respect to this Agreement and, upon doing so, the Escrow Agent shall be released from any obligations or liability to either party as a consequence of any such claims or demands. The reasonable fees and costs incurred by the Escrow Agent in interpleading said parties shall be borne equally by SM&A and the Shareholders as a group.
6.4 The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, inquire into or pass upon the validity, binding effect, execution or sufficiency of this Agreement or of any amendment or supplement hereto.
Appears in 1 contract
Sources: Escrow Agreement (Sm&a Corp)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound subject to, nor required to comply with, any other agreement to which the Purchaser or the Seller is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from the Purchaser or the Seller or an entity acting on its behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder.
(b) The Escrow Property shall be held by the provisions Escrow Agent either directly or through the Federal Reserve/Treasury Book-Entry System for United States and federal agency securities (the “Book-Entry System”), The Depository Trust Company, a clearing agency registered with the Securities and Exchange Commission (“DTC”), or through any other clearing agency or similar system (a “Clearing Agency”). The Escrow Agent shall have no responsibility and shall not be liable for ascertaining or acting upon any calls, conversions, exchange offers, tenders, interest rates changes, or similar matters relating to securities held at DTC or with any Clearing Agency unless the Escrow Agent shall have received actual and timely notice of the same, nor shall the Escrow Agent have any agreement among responsibility or liability for the other parties hereto except this Agreementactions or omissions to act of the Book-Entry System, DTC or any Clearing Agency.
(c) 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 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 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, 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.
(d) 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 or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against on its part. In no event shall the Escrow AgentAgent be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Buyer Purchaser and the Seller shallor any entity acting on behalf of the Purchaser or the Seller, severally and not jointly(ii) for any indirect, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all lossesconsequential, liabilities, claims, actions, punitive or special damages, regardless of the form of action and expenseswhether or not any such damages were foreseeable or contemplated, including reasonable attorneys' fees and disbursements(iii) for the acts or omissions of its nominees, arising out of and in connection with this Agreement. Without limiting correspondents, designees, agents, subagents or subcustodians, (iv) for the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation, limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property Escrow Property, or any loss of interest or income incident to any such delays. This Section 5(c, or (v) shall survive notwithstanding any termination for an amount in excess of this Agreement or the resignation value of the Escrow AgentProperty, valued as of the date of deposit, but only to the extent of direct money damages.
(de) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Purchaser and the Seller, as to any matter relating to this Escrow Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
(f) The Escrow Agent shall 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 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 the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(g) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eh) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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 shall not be under any duty to give the Escrow 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 in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(and any successor escrow agentj) may at At any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by Escrow Agent may request an instruction in writing in English from the Buyer Purchaser and the Seller and may, at its own option, include in writing or such request the course of action it proposes to take and the date on which it proposes to act, regarding any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations matter arising in connection with this Agreementits duties and obligations hereunder. The resignation of the Escrow Agent will take effect shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (the "Resignation Date"3) which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 business days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer Purchaser and the Seller on receives the appointment Escrow Agent’s request for instructions and its proposed course of such successor escrow agent. If at the Resignation Date action, and provided further that, prior to so acting, the Escrow Agent has not received a designation the written instructions requested.
(k) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of a successor escrow agentsecurities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent's sole responsibility after , absent gross negligence, shall not be responsible or liable in the Resignation Date event such communication is not an authorized or authentic communication of the Purchaser or the Seller or is not in the form the Purchaser and the Seller sent or intended to send (whether due to fraud, distortion or otherwise). The Purchaser and the Seller shall be to safekeep indemnify the Escrowed Property Escrow Agent against any loss, liability, claim or expense (including legal fees and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoexpenses) it may incur with its acting in accordance with any such communication.
(jl) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Purchaser and the Seller, which eliminates such ambiguity or uncertainty.
(m) In the event of any dispute between or conflicting claims among the Purchaser and the Seller and any other person or entity with respect to any Escrow Property, 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 Purchaser and the Seller for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to 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 satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Escrow Agent shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed a joint and several obligation of, the Purchaser and the Seller.
(n) 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 conclusively rely without any liability upon the contents thereof.
(ko) In The Escrow Agent does not have any interest in the event Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Seller 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 way of any disagreement between the Buyer such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Purchaser and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or in the event that will provide the Escrow Agent in good faith is in doubt as to what action it should take hereunderwith appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. This paragraph shall survive notwithstanding any termination of this Escrow Agreement or the resignation or removal of the Escrow Agent shall be entitled to retain the Escrowed Property and Interest, if any, until the Escrow Agent shall have received Agent.
(ip) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on provide to the Purchaser and the Seller monthly statements identifying transactions, transfers or holdings of Escrow Property and each such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services statement shall be deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be Purchaser and the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 Seller unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize is notified in writing, by the Escrow Agent, for any securities held hereunderPurchaser and the Seller, to use the services contrary within thirty (30) business days of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemdate of such statement.
Appears in 1 contract
The Escrow Agent. To induce 5.1 The duties and obligations of the Escrow Agent to act hereunder, it is further agreed in respect of the Escrow Cash shall be determined solely by the Buyer express provisions of this Agreement. The Escrow Agent shall have no knowledge of the terms and provisions of any separate agreement including the Related Agreement and shall have no responsibility for compliance by the Depositor or the Beneficiary with the terms of the Related Agreement, or any other agreement, or for ensuring that the terms of any such agreement are reflected in this Agreement.
5.2 The Escrow Agent shall hold the Escrow Cash in accordance with this Agreement and, in particular, (but without limitation) shall not release any part of the Escrow Cash, except as provided in this Agreement.
5.3 The Escrow Agent shall be under no duty to take or omit to take any action with respect to the holding of, or any other matter relating to, the Escrow Cash except in accordance with this Agreement.
5.4 The Escrow Agent shall be under no duty to make recommendations to or advise the Depositor and/or the Beneficiary in connection with the Escrow Cash and the Seller that:
(a) The Escrow Agent shall hold Escrow Cash where instructed to do so by the Depositor or the Beneficiary in accordance with this Agreement on the basis that the Escrow Agent shall not be under responsible for advising the Depositor and/or the Beneficiary as to the merits of any duty to give the Escrowed Property held by it hereunder any greater degree particular manner of care than it gives its own similar property and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interestholding Escrow Cash.
(b) This Agreement expressly sets forth all 5.5 In the duties event of the Escrow Agent with respect to a change in any and all matters pertinent hereto. No implied duties applicable law or obligations shall be read into this Agreement against regulatory requirement that affects the Escrow Agent. The Escrow Agent shall not be bound by the provisions ’s performance of any agreement among the other parties hereto except its obligations under this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faithmay, in accordance with the terms hereof, including without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment prior written agreement of the Escrowed Property or any loss of interest incident to any other Parties, such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and agreement shall not be liable unreasonably withheld consult with legal, tax, accounting, and regulatory counsel of its own choice and shall have full and complete authorisation and protection for any action taken or omitted to be taken by it under this Agreement in good faith and in accordance with the opinion of legal, tax, accounting, or regulatory counsel. Subject to any applicable regulation and/or a formal request of any Party the Escrow Agent will provide such adviceParty with such information obtained.
(f) 5.6 The Escrow Agent does not have make any interest warranties, representations or other statements whatsoever in respect of:
(a) the Escrowed Property deposited hereunder but is serving ability of either the Depositor or the Beneficiary (as escrow holder only the case may be) to transfer full legal and has only possession thereof. The Buyer and the Seller shall each pay or reimburse beneficial ownership of the Escrow Agent upon request for one-half Cash free from all liens, claims, charges and encumbrances; or
(b) the enforceability of any transfer taxes rights or other taxes interests relating to the Escrowed Property incurred Escrow Cash, or whether it is appropriate, necessary or desirable to take or omit to take any action (including, without limitation, any form of registration) in connection herewith and shall indemnify and hold harmless relation to the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.Cash; or
(gc) The Escrow Agent makes no representation as to the validityany legal, valuetax, genuineness accounting, regulatory or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations investment issues arising in connection with this Agreement. The resignation the holding of the Escrow Agent will take effect on Cash, and these matters shall be the date (exclusive concern of the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer Depositor and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoBeneficiary.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) 5.7 In the event of any disagreement dispute between or conflicting claims by any person or persons with respect to the Buyer terms of this Agreement and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or in the event that the Escrow Agent in good faith is in doubt uncertain as to what action it should take its duties or rights hereunder, the Escrow Agent shall be entitled to retain apply to a court of law to determine the Escrowed Property rights of such persons and Interestmeanwhile at its option to refuse to comply with any and all claims, if any, until the demands or instructions with respect to such Escrow Agent Cash or any obligations hereunder so long as such dispute or conflict shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreementcontinue. The Escrow Agent shall not be liable or become liable in any way for its refusal to comply with such conflicting claims, or demands or instructions. The Escrow Agent shall be entitled to refuse to act on until such Final Determination conflicting or agreement without further question.
adverse claims or demands shall have been: (li) finally determined by a non-appealable court order in a court of competent jurisdiction; or (ii) resolved by both the Beneficiary and the Depositor executing and delivering to Escrow Agent joint written instructions regarding the settlement of the dispute. 5.8 The compensation of Depositor and Beneficiary hereby authorise the Escrow Agent to act hereunder notwithstanding that: (as payment in fulli) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or any of its counsel which divisions, branches or affiliates may have a material interest in the transaction or that circumstances are not paid as provided for herein may be taken from any property held by such that the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material may have a potential conflict of duty or other similar materials which mentions interest including the Escrow Agent's name or the rights, powers, or duties of fact that the Escrow Agent shall be issued by or any of its affiliates may: (a) provide brokerage or other services to other customers; (b) act in the other parties hereto same transaction as agent for more than one customer; (c) have a material interest in the relevant transaction; or on such parties' behalf unless (d) earn profits from any of the activities listed herein; or (ii) the Escrow Agent shall first have given or any of its specific written consent thereto.
(n) The other parties hereto authorize divisions, branches or affiliates may be in possession of information tending to show that the instructions received may not be in the best interests of the Depositor or Beneficiary, as the case may be, and the Depositor and Beneficiary agree that the Escrow Agent, for Agent is not under any securities held hereunder, duty to use the services of disclose any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemsuch information.
Appears in 1 contract
Sources: Contract for the Provision of Mobile Drilling Rig Services (Hyperdynamics Corp)
The Escrow Agent. To induce (a) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the United States (“Applicable Law”), the Escrow Agent is required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the parties hereto. Accordingly, each of the parties agree to provide to the Escrow Agent, upon request and from time to time, such identifying information and documentation as may be available to such party in order to enable the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:comply with Applicable Law.
(ab) The 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 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 or legal counsel of its own choosing deems appropriate. 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 under liable to any duty of the parties hereto or to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not other person or entity even though such order, judgment, decree, writ or process may be required subsequently modified or vacated or otherwise determined to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn have been without legal force or accrue interest.
(b) This Agreement expressly sets forth all the duties of effect; provided, that the Escrow Agent with respect to any shall remain liable for its gross negligence and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreementwillful misconduct.
(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 or willful misconduct andon its part. In no event, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against other than resulting from the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 ’s gross negligence or willful misconduct, shall the Escrow Agent be liable: (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from Parent and the investment Stockholder Representative or reinvestment any entity acting on behalf of Parent and the Stockholder Representative; (ii) for any indirect, consequential, punitive or special damages, regardless of the Escrowed Property form of action and whether or any loss of interest incident to not any such delays. This Section 5(cdamages were foreseeable or contemplated; (iii) shall survive notwithstanding for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians; or (iv) for any termination direct money damages in excess of this Agreement or the resignation value of the Escrow AgentProperty, valued as of the date of deposit.
(d) The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(e) The Escrow Agent, following reasonable inquiry (as customarily exercised in the ordinary course of business), shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does shall not have be responsible in any interest respect for the form, execution, validity, value or genuineness of documents or securities 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, in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation absence of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness ’s gross negligence or the collectability of any security or other document or instrument held by or delivered to it.
(h) willful misconduct. 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(jg) The Escrow Agent shall have no responsibility for not be under any duty to give the contents Escrow 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 writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereoffunds held hereunder. Uninvested funds held hereunder shall not earn or accrue interest.
(kh) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent gross negligence and willful misconduct, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of Parent or the Stockholder Representative or is not in the form Parent and the Stockholder Representative sent or intended to send (whether due to fraud, distortion or otherwise). Parent and the Stockholder Representative shall jointly and severally indemnify the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may incur with its acting in accordance with any such communication, except with respect to the Escrow Agent’s gross negligence or willful misconduct.
(i) In the event of any disagreement between the Buyer and the Seller resulting in adverse claims ambiguity or demands being made in connection with the Escrowed Property and Interest, if any, uncertainty hereunder or in the event that any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in good faith is in doubt as its sole discretion, refrain from taking any action other than to what action it should take hereunderretain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by Parent and the Stockholder Representative, which eliminates such ambiguity or uncertainty.
(j) In the event of any dispute between or conflicting claims among Parent and the Stockholder Representative and any other person or entity with respect to any Escrow Property, 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 Parent and the Stockholder Representative 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 Escrowed Property and Interest, if any, until conflicting parties as evidenced in a writing satisfactory to the Escrow Agent; or (ii) the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the opinion of counsel referred presenting party, satisfactory to in Section 3(b)) directing delivery the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery rights of the Escrowed Property parties by a court of competent jurisdiction, and Interestthat the time for appeal from such order, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance judgment or decree has expired without an appeal having been filed with such Final Determination or agreementcourt. The Escrow Agent shall act on such Final Determination or agreement court order and legal opinions without further question.
(l) . The compensation of the Escrow Agent (may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as payment it may deem, in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement its sole discretion, necessary. The costs and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder expenses (including reasonable fees, expenses and disbursements of its counsel). All attorneys’ fees and expenses of the Escrow Agent hereunder expenses) incurred in connection with such proceeding shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectusesby, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services deemed a joint and several obligation of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company Parent and the Federal Reserve Book Entry SystemStockholder Representative.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound subject to, nor required to comply with, any other agreement to which the Company or the Investor is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Company or the Investor or an entity acting on its behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder.
(b) The Escrow Property shall be held by the provisions Escrow Agent either directly or through the Federal Reserve/Treasury Book-Entry System for United States and federal agency securities (the "Book-Entry System"), The Depository Trust Company, a clearing agency registered with the Securities and Exchange Commission ("DTC"), or through any other clearing agency or similar system (a "Clearing Agency"). The Escrow Agent shall have no responsibility and shall not be liable for ascertaining or acting upon any calls, conversions, exchange offers, tenders, interest rates changes, or similar matters relating to securities held at DTC or with any Clearing Agency unless the Escrow Agent shall have received actual and timely notice of the same, nor shall the Escrow Agent have any agreement among responsibility or liability for the other parties hereto except this Agreementactions or omissions to act of the Book-Entry System, DTC or any Clearing Agency.
(c) 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 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 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, 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.
(d) 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 or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Company and the Investor or any successor escrow agententity acting on behalf of the Company or the Investor, (ii) from and against one-half of for any and all lossesindirect, liabilitiesconsequential, claims, actions, punitive or special damages, regardless of the form of action and expenseswhether or not any such damages were foreseeable or contemplated, including reasonable attorneys' fees and disbursements(iii) for the acts or omissions of its nominees, arising out of and in connection with this Agreement. Without limiting correspondents, designees, agents, subagents or subcustodians, (iv) for the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation, limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property Escrow Property, or any loss of interest or income incident to any such delays. This Section 5(c, or (v) shall survive notwithstanding any termination for an amount in excess of this Agreement or the resignation value of the Escrow AgentProperty, valued as of the date of deposit, but only to the extent of direct money damages.
(de) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Property an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled hereunder.
(f) As security for the due and punctual performance of any and all of the Company's and the Investor's obligations to the Escrow Agent hereunder, now or hereafter arising, the Company and the Investor hereby pledge, assign and grant to the Escrow Agent a continuing security interest in, and a lien on, the Escrow Property and all Distributions thereon or additions thereto. The security interest of the Escrow Agent shall at all times be valid, perfected and enforceable by the Escrow Agent against the Company and the Investor and all third parties in accordance with the terms of this Agreement.
(g) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Company, as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
(h) The Escrow Agent shall 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 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 the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(i) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(ej) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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.
(ik) The Escrow Agent shall not be under any duty to give the Escrow 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 in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(and any successor escrow agentl) may at At any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged may request an instruction in writing in English from the Company and the Investor and may, at its own option, include in such request the course of action it proposes to take and from the date on which it proposes to act, regarding any and all further obligations matter arising in connection with this Agreementits duties and obligations hereunder. The resignation of the Escrow Agent will take effect shall not be liable for acting in accordance with such a proposal on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to specified therein, provided that the other parties hereto. Upon specified date shall be at least three (3) Business Days after the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer Company and the Seller on Investor receive the appointment Escrow Agent's request for instructions and its proposed course of such successor escrow agent. If at the Resignation Date action, and provided further that, prior to so acting, the Escrow Agent has not received a designation the written instructions requested.
(m) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of a successor escrow agentsecurities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent's sole responsibility after , absent gross negligence, shall not be responsible or liable in the Resignation Date event such communication is not an authorized or authentic communication of the Company or the Investor or is not in the form the Company and the Investor sent or intended to send (whether due to fraud, distortion or otherwise). The Company and the Investor shall be to safekeep indemnify the Escrowed Property Escrow Agent against any loss, liability, claim or expense (including legal fees and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoexpenses) it may incur with its acting in accordance with any such communication.
(jn) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Company and the Investor, which eliminate such ambiguity or uncertainty.
(o) In the event of any dispute between or conflicting claims among the Company and the Investor and any other person or entity with respect to any Escrow Property, 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 and the Investor for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to 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 satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Escrow Agent shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys' fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed a joint and several obligation of, the Company and the Investor.
(p) 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 conclusively rely without any liability upon the contents thereof.
(kq) In The Escrow Agent does not have any interest in the event of any disagreement between the Buyer Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Company and the Seller resulting in adverse claims Investor shall pay or demands being made in connection with the Escrowed Property and Interest, if any, or in the event that reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrow Property incurred in good faith is in doubt as to what action it should take hereunder, connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Property shall be entitled subject to retain withholding regulations then in force with respect to United States taxes. The Company and the Escrowed Property and Interest, if any, until Investor will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. This paragraph shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by survive notwithstanding any termination of this Agreement or the opinion of counsel referred to in Section 3(b)) directing delivery resignation or removal of the Escrowed Property and Interest, if any, or Escrow Agent.
(iir) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on provide to the Company and the Investor monthly statements identifying transactions, transfers or holdings of Escrow Property and each such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services statement shall be deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be Company and the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 Investor unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize is notified in writing, by the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry SystemInvestor, to the contrary within thirty (30) Business Days of the date of such statement.
Appears in 1 contract
Sources: Escrow Agreement (Numatics Inc)
The Escrow Agent. To induce (a) The duties, responsibilities and obligations of Escrow Agent shall be limited to those expressly set forth herein and no duties, responsibilities or obligations shall be inferred or implied against the Escrow Agent. The Escrow Agent shall not be subject to, nor required to comply with, any other agreement, including but not limited to the PSA Agreement, to which W&T or BEEOO is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from W&T or BEEOO. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder.
(b) 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 Escrow Property (including but not limited to act 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 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, 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.
(c) The Escrow Agent shall not be liable to BEEOO or W&T 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 or willful misconduct on its part. In no event shall the Escrow Agent be liable to BEEOO or W&T (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from W&T or BEEOO or any entity acting on behalf of W&T or BEEOO, (ii) anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, 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 (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, or (iv) for the investment or reinvestment of any cash held by it hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Property, or any loss of interest or income incident to any such delays.
(d) The Escrow Agent shall be entitled to payment of the fees set forth in Exhibit “B” hereto for all services rendered by it hereunder. If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Property an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is further agreed by the Buyer entitled to hereunder.
(e) The Escrow Agent may consult with legal counsel of its own choosing, as to any matter relating to this Agreement, including review for any request for disbursement hereunder or review of monthly reports or invoices, and the Seller that:Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel. The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(af) 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 propriety or validity or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(g) The Escrow Agent shall not be responsible in any respect for the form, execution, validity, value or genuineness of documents or securities 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. 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 Escrow Property deposited hereunder.
(h) The Escrow Agent shall not be under any duty to give the Escrowed Escrow 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 Escrowed Property funds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(bi) This Agreement expressly sets forth all the duties of At any time the Escrow Agent may request an instruction in writing from W&T and BEEOO and may, at its own option, include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with respect to any its duties and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agenthereunder. The Escrow Agent shall not be bound by liable for acting in accordance with such a proposal on or after the provisions date specified therein, provided that the specified date shall be at least three (3) Business Days after W&T and BEEOO receives the Escrow Agent’s request for instructions and its proposed course of any agreement among action, and provided further that, prior to so acting, the other parties hereto except this AgreementEscrow Agent has not received the written instructions requested.
(cj) The When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by facsimile or electronic transmission, the Escrow Agent, absent gross negligence or willful misconduct, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of W&T or BEEOO or is not in the form W&T or BEEOO sent or intended to send (whether due to fraud, distortion or otherwise), if the document is signed by one of the respective representatives shown on Exhibit “A”. W&T and BEEOO shall release the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may incur as a result of the Escrow Agent acting in accordance with any such communication.
(k) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by W&T and BEEOO which eliminates such ambiguity or uncertainty.
(l) In the event of any dispute between or conflicting claims among W&T or BEEOO with respect to any Escrow Property, 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 liable, except or become liable in any way for its own gross negligence failure or willful misconduct and, except refusal to comply with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, conflicting claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreementdemands or instructions. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent shall be entitled to rely refuse to act until, in good faith upon any its sole discretion, either (i) such conflicting or adverse claims or demands shall have been determined by a final order, judgmentjudgment or decree of a court of competent jurisdiction, certificationwhich order, demandjudgment or decree is not subject to appeal, notice, instrument or other settled by agreement between the conflicting parties as evidenced in a writing delivered satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it hereunder in accordance with sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the terms hereof without being required presenting party, satisfactory to determine the authenticity Escrow Agent, to the effect that said order, judgment or the correctness of any fact stated therein or the propriety or validity decree represents a final adjudication of the service thereofrights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Escrow Agent shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may act deem, in reliance upon any instrument or signature believed by it in good faith to be genuine its sole discretion, necessary. The costs and may assume that any person purporting to give receipt or advice or make any statement or execute any document expenses (including reasonable attorneys’ fees and expenses) incurred in connection with the provisions hereof has been duly authorized to do sosuch interpleader proceeding shall be paid by, and shall be deemed a joint obligation of, W&T and BEEOO.
(em) 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 act pursuant to conclusively rely without any liability upon the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advicecontents thereof.
(fn) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller W&T shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed Escrow Property incurred in connection herewith paid to W&T hereunder and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein then in force with respect to United States taxes. W&T and BEEOO will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Escrow Property and is will not be responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(ho) The Escrow Agent shall not be called upon provide to advise any party as to the wisdom in selling W&T and BEEOO monthly statements identifying transactions, transfers or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The holdings of Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the Escrow Agent each such statement shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement W&T and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 BEEOO unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize the Escrow Agentis notified in writing, for any securities held hereunderby W&T or BEEOO, to use the services contrary within thirty (30) business days of any United States central securities depository it deems appropriatethe date of such statement, including, but not limited to, the Depository Trust Company W&T and the Federal Reserve Book Entry SystemBEEOO agree to waive their right to receive trade confirmations as they occur.
Appears in 1 contract
Sources: Non Operated Escrow Agreement (Black Elk Energy Finance Corp.)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property All fees and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties expenses of the Escrow Agent in connection with respect to any and all matters pertinent hereto. No implied duties or obligations its performance of this Agreement shall be read into this Agreement against borne and paid exclusively by the Purchaser (within thirty (30) days after receipt of appropriate invoices from the Escrow Agent). Under no circumstances shall any fees, expenses or other amounts that may be payable to the Escrow Agent be paid by the Seller or the Seller's Representative or from the Escrow Fund. The Escrow Agent shall not be bound by the provisions of liable for any agreement among the other parties hereto except act or omission to act under this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct andmisconduct. The Escrow Agent shall not be liable for, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, Purchaser agrees to indemnify and hold harmless the Escrow Agent (for and save it harmless from, any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actionsdemands, damages, and expenses, losses or damages (including reasonable attorneys' fees and disbursements, expenses) arising out of any action taken or omitted in good faith hereunder or upon the advice of counsel. The Escrow Agent may decline to act and shall not be liable for any failure to act if in doubt as to its duties under this Agreement. The Escrow Agent may act upon any instrument or signature believed by it to be genuine and may assume that the information contained therein is true and accurate and that any Person purporting to give any notice or instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to this Agreement and applicable laws, and the Escrow Agent is not charged with knowledge of or any duties or responsibilities in connection with this Agreementany other document or agreement. Without limiting The Escrow Agent is hereby authorized to disregard any and all warnings by any of the foregoingparties hereto or by any other Person, excepting only orders or process of courts of law, or Arbitration Awards made pursuant to Section 4(d) hereof, and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court or Arbitration Awards. In case the Escrow Agent obeys or complies with any such order, judgment or decree of any court or any Arbitration Award, the Escrow Agent will not be liable to any of the parties hereto or to any other Person by reason of such compliance, notwithstanding the fact that any such order, judgment, decree or Arbitration Award may be subsequently reversed, modified, annulled, set aside or vacated or found to have been entered without jurisdiction. The Escrow Agent shall not be liable for fluctuations in the value of the Escrow Shares which might affect the value of distributions from the Escrow Fund. The Escrow Agent shall not be liable in the event that previous distributions from the Escrow Fund for Seller's Arbitration Expenses, Seller's Representative Expenses or Defense Costs result in insufficient funds in the Escrow Fund to fully pay any required distribution to the Purchaser or the Seller's Representative.
(b) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at the addresses set forth herein or at such other address as the parties shall provide, at least thirty (30) days prior to the date specified for such resignation to take effect. In such event the Purchaser and the Seller's Representative shall jointly appoint a successor escrow agent within said thirty (30) days; if the Purchaser and the Seller's Representative do not appoint a successor escrow agent within such period, the Escrow Agent may appoint, or petition a court of competent jurisdiction for the appointment of, a successor escrow agent. Upon the effective date of such resignation, the Escrow Fund shall be delivered by the Escrow Agent to such successor escrow agent or as otherwise shall be designated in a writing jointly signed by the Purchaser and the Seller's Representative.
(c) In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the parties hereto, the Escrow Agent shall have the right to interplead said parties in no event and deposit the Escrow Fund with any court of competent jurisdiction and request that such court determine the respective rights of such parties with respect to this Agreement and the Escrow Fund and, upon doing so, the Escrow Agent shall be liable released from any obligations or liability to any other party hereunder as a consequence of any such claims or demands. The Purchaser shall indemnify the Escrow Agent for and hold it harmless from any liability to any Person as a result of such deposit and interpleader action, including any legal fees and expenses incurred by the Escrow Agent in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agenttherewith.
(d) The Escrow Agent shall be entitled to rely in good faith upon may execute any orderof its powers or responsibilities hereunder, judgmentand exercise any rights hereunder, certification, demand, notice, instrument either directly or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity by or the correctness of any fact stated therein through its agents or the propriety or validity of the service thereofattorneys. The Escrow Agent may act in reliance shall not be responsible for and shall not be under a duty to examine, inquire into or pass upon the validity, binding effect, execution or sufficiency of this Agreement or of any instrument amendment or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do sosupplement hereto.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts hereby agrees that it is obligated aware of and consents to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood fact that the Escrow Agent shall be responsible for income reporting only has in the past, is now, and may in the future represent the Purchaser in other transactions as an underwriter, financial advisor, placement agent, etc., in connection with respect to income earned on the investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation banking activities of the Escrow Agent.
(g) . The Escrow Agent makes no representation as Purchaser hereby agrees that it is aware of and consents to the validityfact that, valuealong with representing it in other transactions, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, represented the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made Company in connection with the Escrowed Property sale of shares of the Company under the Purchase Agreement. Both the Purchaser and Interestthe Seller acknowledge these conflicts of interests and potential future conflicts of interests and, if anydespite this, or in the event affirm their request that the Escrow Agent in good faith is in doubt as accept its obligations pursuant to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further questionthis Agreement.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Escrow Agreement (Tulpan Yossi)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Company or the Dealer Manager is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Company, the Dealer Manager or an entity acting on its behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among of its duties hereunder.
(b) 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 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 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, Escrow Agent shall not be liable to any of the parties hereto except this Agreementor 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.
(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 or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless on its part. In no event shall the Escrow Agent be liable (and i) for acting in accordance with or conclusively relying upon any successor escrow agentinstruction, notice, demand, certificate or document from the Company, the Dealer Manager, or any entity acting on behalf of the Company, (ii) from and against one-half of for any and all lossesindirect, liabilitiesconsequential, claims, actions, punitive or special damages, and expensesmultiple damages under M.G.L. c. 93A or any other authority, including reasonable attorneys' damages for lost profits, damages for emotional distress, or attorney's fees and disbursementscosts, arising out all regardless of the form of action and in connection with this Agreement. Without limiting whether or not any such damages were foreseeable or contemplated, (iii) for the foregoingacts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, (iv) for the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation, limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property Escrow Property, or any loss of interest or income incident to any such delays, or (v) for an amount in excess of the value of the Escrow Property, valued as of the date of deposit, but only to the extent of direct money damages. This Section 5(c) The provisions of this subsection shall survive notwithstanding any the termination of this Agreement or the earlier resignation or removal of the Escrow Agent.
(d) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not paid within fifteen (15) calendar days of when they are due, the Escrow Agent may reimburse itself therefor from the Escrow Property and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Property an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder.
(e) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Company as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel. Reliance on such advice of counsel shall not effect or be deemed to be a waiver of the Escrow Agent's attorney-client privilege or any other applicable privilege or protection.
(f) The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism, the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility, or any computer or other technological malfunction).
(g) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eh) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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 shall not be under any duty to give the Escrow 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 in this Agreement.
(j) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent its own gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Company or the Dealer Manager or is not in the form the Company or the Dealer Manager sent or intended to send (whether due to fraud, distortion or otherwise). The Company shall indemnify the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may incur with its acting in accordance with any such communication.
(k) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Company which eliminates such ambiguity or uncertainty.
(1) In the event of any dispute between or conflicting claims among the Company and any successor escrow agent) may at other person or entity with respect to any time resign Escrow Property, 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 for so long as such by delivering dispute or conflict shall continue, and the Escrowed Property and InterestEscrow Agent shall not be or become liable in any way to the Company or any other person for failure or refusal to comply with such conflicting claims, if anydemands or instructions. The Escrow Agent shall be entitled to refuse to act until, to any successor escrow agent jointly designated its sole satisfaction, either (i) such conflicting or adverse claims or demands shall have been determined by the Buyer and the Seller in writing a final order, judgment or to any decree of a court of competent jurisdiction, whereupon which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall be discharged of have received security or an indemnity satisfactory to it sufficient to hold it harmless from and from against any and all further obligations arising in connection with this Agreementlosses which it may incur by reason of so acting. The resignation of Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent will take in its sole discretion, to the effect on that said order, judgment or decree represents a final adjudication of the date (rights of the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including parties by a court of competent jurisdiction) , and that the time for appeal from such order, judgment or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties heretodecree has expired without an appeal having been filed with such court. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the The Escrow Agent has not received a designation of a successor escrow agentmay act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys' fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed an obligation of, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoCompany.
(jm) 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 conclusively rely without any liability upon the contents thereof.
(kn) In the event of The Escrow Agent does not have any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or interest in the event that Escrow Property deposited hereunder but is serving as escrow holder only and 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 good faith is in doubt as to what action it should take hereunder, connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from this Escrow Account shall be entitled subject to retain withholding regulations then in force with respect to United States taxes. The Company or the Escrowed Property and Interest, if any, until Dealer Manager will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. This paragraph shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by survive notwithstanding any termination of this Agreement or the opinion of counsel referred to in Section 3(b)) directing delivery resignation or removal of the Escrowed Property and Interest, if any, or Escrow Agent.
(iio) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on provide to the Company and the Dealer Manager monthly statements identifying transactions, transfers or holdings of Escrow Property and each such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services statement shall be deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be Company and the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 Dealer Manager unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize is notified in writing, by the Escrow Agent, for any securities held hereunderCompany or the Dealer Manager, to use the services contrary within thirty (30) business days of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemdate of such statement.
Appears in 1 contract
Sources: Subscription Escrow Agreement (American Realty Capital Trust, Inc.)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not have no liability or obligation with respect to the Deposit except for Escrow Agent’s willful misconduct or gross negligence. The Escrow Agent’s sole responsibility shall be under any duty to give for the Escrowed Property held by it hereunder any greater degree safekeeping and disbursement of care than it gives its own similar property the Deposit in accordance with the terms of this Agreement. The Escrow Agent shall have no implied duties or obligations and shall not be required charged with knowledge or notice of any fact or circumstance not specifically set forth herein. The Escrow Agent may rely upon any instrument, not only as to invest its due execution, validity and effectiveness, but also as to the truth and accuracy of any Escrowed Property held hereunder except as directed information contained therein, which the Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by the person or parties purporting to sign the same and conform to the provisions of this Agreement. Uninvested funds held hereunder In no event shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any be liable for incidental, indirect, special, and all matters pertinent hereto. No implied duties consequential or obligations shall be read into this Agreement against the Escrow Agentpunitive damages. The Escrow Agent shall not be bound obligated to take any legal action or commence any proceeding in connection with the Deposit, any account in which the funds are deposited, this Agreement or the Purchase Agreement, or to appear in, prosecute or defend any such legal action or proceeding. The Escrow Agent may consult legal counsel selected by it in any event of any dispute or question as to construction of any of the provisions hereof or of any other agreement or its duties hereunder, or relating to any dispute involving any party hereto, and shall incur no liability and shall be fully indemnified from any liability whatsoever in acting in accordance with the opinion or instructions of such counsel. The Buyer and Seller jointly and severally shall promptly pay, upon demand, the reasonable fees and expenses of any such counsel.
(b) The Escrow Agent is hereby authorized, in its sole discretion, to comply with orders issued or process entered by any court with respect to the Deposit, without determination by the provisions Escrow Agent of such court’s jurisdiction in the matter. If any portion of the Deposit is at any time attached, garnished or levied upon under any court order, or in case the payment, assignment, transfer, conveyance or delivery of any agreement among such property shall be stayed or enjoined by any court order, or in any case any order judgment or decree shall be made or entered by any court affecting such property or any part thereof, then and in any such event, the Escrow Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree which it is advised by legal counsel selected by it to be binding upon it, without the need for appeal or other action; and if the Escrow Agent complies with any such order, writ, judgment or decree, it shall not be liable to any of the parties hereto except this Agreementor to any other person or entity by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against From and at all times after the Escrow Agentdate of this Agreement, the Buyer and the Seller Seller, jointly and severally, shall, severally to the fullest extent permitted by law and not jointlyto the extent provided herein, indemnify and hold harmless the Escrow Agent and each partner, director, officer, employee, attorney, agent and affiliate of Escrow Agent (and any successor escrow agentcollectively, the “Indemnified Parties”) from and against one-half of any and all actions, claims (whether or not valid), losses, damages, liabilities, claimscosts and expenses of any kind or nature whatsoever (including without limitation reasonable attorney’s fees, actions, damages, costs and expenses) incurred by or asserted against any of the Indemnified Parties from and after the date hereof, whether direct, indirect or consequential, as a result of or arising from or in any way relating to any claim, demand, suit, action, or proceeding (including any inquiry or investigation) by any person, including reasonable attorneys' fees and disbursementswithout limitation the parties to this Agreement, whether threatened or initiated, asserting a claim for any legal or equitable remedy against any person under any statute or regulation, including, but not limited to, any federal or state securities laws, or under any common law or equitable cause or otherwise, arising out of and from or in connection with the negotiation, preparation, execution, performance or failure of performance of this Agreement. Without limiting Agreement or any transaction contemplated herein, whether or not any such Indemnified Party is a party to any such action or proceeding, suit or the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment target of any cash held such inquiry or investigation; provided, however, that no Indemnified Party shall have the right to be indemnified hereunder for liability finally determined by it hereunder in good faitha court of competent jurisdiction, in accordance with subject to no further appeal, to have resulted from the terms hereof, including without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment misconduct of such Indemnified Party. The obligations of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) parties under this section shall survive notwithstanding any termination of this Agreement Agreement, and resignation or the resignation removal of the Escrow Agent shall be independent of any obligation of Escrow Agent.
(d) The Parties agree that no payment by Buyer or Seller of any claim by the Escrow Agent for indemnification hereunder shall impair, limit, modify or affect, as among the Buyer and Seller, their respective rights and obligations with respect to one another.
(e) If at any time, there shall exist any dispute among any of the Buyer and Seller with respect to holding or disposition of any portion of the Deposit or any other obligations of Escrow Agent hereunder, or if at any time the Escrow Agent is unable to determine, to the Escrow Agent’s sole satisfaction, the proper disposition of any portion of the Deposit or the Escrow Agent’s proper actions with respect to its obligations hereunder, or if the parties have not within thirty (30) days of the furnishing by the Escrow Agent of a notice of resignation pursuant to the notice provisions hereof, appointed a successor Escrow Agent to act hereunder, then Escrow Agent may, in its sole discretion, take either or both of the following actions:
(i) suspend the performance of any of its obligations (including without limitation any disbursement obligations) under this Agreement until such dispute or uncertainty shall be resolved to the sole satisfaction of the Escrow Agent or until a successor Escrow Agent shall be entitled appointed (as the case may be); provided however, the Escrow Agent shall continue to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder hold the Deposit in accordance with the terms hereof without being hereof; or
(ii) petition (by means of an interpleader action or any other appropriate method) any court of competent jurisdiction in any venue convenient to the Escrow Agent, for instructions with respect to such dispute or uncertainty, and to the extent required to determine by law, pay into such court, for holding and disposition in accordance with the authenticity or the correctness instructions of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed such court, all funds held by it in good faith the Deposit, after deduction and payment to the Escrow Agent of all fees and expenses (including court costs and reasonable attorneys’ fees) payable to, incurred by, or expected to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document incurred by Escrow Agent in connection with performance of its duties and the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice exercise of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such adviceits rights hereunder.
(f) The Escrow Agent does not have may resign from the performance of its duties hereunder at any interest in time by giving thirty (30) days’ prior written notice to the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and Parties or may be removed, with or without cause, by the Seller shall each pay or reimburse Parties, acting jointly, by furnishing a joint written direction to the Escrow Agent, at any time by the giving of ten (10) days’ prior written notice to the Escrow Agent upon request for one-half as provided herein below. Upon any such notice of resignation or removal, the Buyer and Seller jointly shall appoint a successor Escrow Agent hereunder. Upon the acceptance in writing of any transfer taxes or other taxes relating to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the appointment of an Escrow Agent from any amounts that it is obligated to pay in the way of hereunder by a successor Escrow Agent, such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the successor Escrow Agent shall be responsible for income reporting only thereupon succeed to and become vested with respect to income earned on investment all the rights, powers, privileges and duties of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the retiring Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the retiring Escrow Agent shall be discharged of from its duties and obligations under this Escrow Agreement, but shall not be discharged from any and all further obligations arising in connection with liability for actions taken as Escrow Agent hereunder prior to such succession. After any retiring Escrow Agent’s resignation or removal, the provisions of this Escrow Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Escrow Agent under this Escrow Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The retiring Escrow Agent shall have no responsibility for transmit all records pertaining to the contents Deposit and shall pay all funds held by it in the Deposit to the successor Escrow Agent, after making copies of any writing such records as the retiring Escrow Agent deems advisable and after deduction and payment to the retiring Escrow Agent of any third party contemplated herein as a means all fees and expenses (including court costs and reasonable attorneys’ fees) payable to, incurred by, or expected to resolve disputes and may rely without any liability upon be incurred by the contents thereof.
(k) In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made retiring Escrow Agent in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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 the exercise of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent rights hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer NYTEX, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Seller Representative that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds Escrowed Property held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties Parties hereto except this Agreement.
(c) The Escrow Agent shall not have only those duties as are specifically provided herein which shall be liabledeemed purely ministerial in nature, except and shall under no circumstances be deemed a fiduciary for any of the Parties to this Agreement. The Escrow Agent will never be required to advance its own gross negligence funds or willful misconduct andincur personal financial liability in performing its duties under this Agreement. The Escrow Agent shall have the right to perform any of its duties hereunder through agents, except with respect attorneys, custodians or nominees. This Agreement sets forth all matters pertinent to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow AgentAccount contemplated hereunder, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless no additional obligations of the Escrow Agent (and shall be inferred from the terms of this Agreement or any successor escrow agent) from and against one-half of any and all lossesother Agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, liabilitiesDIRECTLY OR INDIRECTLY, claimsFOR ANY DAMAGES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, actionsINCLUDING ITS OWN NEGLIGENCE, damagesBUT EXCLUDING ITS OWN BAD FAITH, and expensesGROSS NEGLIGENCE AND WILLFUL MALFEASANCE. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, including reasonable attorneys' fees and disbursementsDIRECTLY OR INDIRECTLY, arising out of and in connection with this AgreementTO ANY PARTY FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR LOSS OF BUSINESS, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agent.
(d) THE ESCROW AGENT IS HEREBY SEVERALLY, AND NOT JOINTLY, INDEMNIFIED AND HELD HARMLESS BY NYTEX, ▇▇▇▇▇ ▇▇▇▇▇▇▇ AND SELLER REPRESENTATIVE FROM ALL LOSSES, LIABILITIES, COSTS AND EXPENSES, INCLUDING 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 RESULTED FROM THE ESCROW AGENT’S BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MALFEASANCE. SUCH INDEMNIFICATION SHALL SURVIVE THE ESCROW AGENT’S RESIGNATION OR REMOVAL, OR THE TERMINATION OF THIS AGREEMENT.
(e) 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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(fg) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has having only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein then in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f5(g) shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agent.
(gh) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(hi) The Escrow Agent shall not be called upon to advise any party Party as to the wisdom in selling or retaining or taking or refraining from taking any action with respect to any securities or other property deposited hereunder.
(ij) The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "“Resignation Date"”) which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties Parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer each of NYTEX, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Seller Representative on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's ’s sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties Parties hereto.
(jk) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely in good faith without any liability upon the contents thereof.
(kl) In the event of any disagreement between NYTEX, on the Buyer one hand, and Seller Representative and ▇▇▇▇▇ ▇▇▇▇▇▇▇, on the Seller other hand, resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if anyProperty, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)below) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer each of NYTEX, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Seller Representative directing delivery of the Escrowed Property and Interest, if anyProperty, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. A “Final Determination” shall mean a final, non-appealable judgment of a court of competent jurisdiction and shall be accompanied by an opinion of counsel to the effect that such judgment is a final, non-appealable judgment of a court of competent jurisdiction. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce 2.01. It is understood and agreed that the duties of the Escrow Agent, are entirely ministerial, being limited to receiving monies and property hereunder, and holding and disbursing such monies and property in accordance with this Agreement. The Escrow Agent shall have no duty or responsibility to enforce the collection or demand payment of any funds deposited into the Escrow Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid to the Escrow Agent, the sole duty of the Escrow Agent shall be to act hereunderreturn the check to the Company.
2.02 The Escrow Agent is not a party to, it and is further agreed by not bound by, any agreement between the Buyer Company and the Seller that:Underwriter or the Underwriter and the Selling Group, which may be evidenced by or arise out of the foregoing instructions.
(a) 2.03 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 any instrument deposited with it, or with respect to the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same.
2.04 The Escrow Agent shall not be under any duty to give the 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 take or be bound by notice of any Escrowed Property held hereunder except as directed default of any person or to take any action with respect to such default involving any expense or liability, unless notice in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties writing is given to an officer of the Escrow Agent with respect of such default by the undersigned or any of them, and unless it is indemnified in a manner satisfactory to it against any and all matters pertinent hereto. No implied duties expense or obligations shall be read into this Agreement against the Escrow Agent. liability arising therefrom.
2.05 The Escrow Agent shall not be bound liable for acting on any notice, request, waiver, consent, receipt, or other paper or document believed by the provisions of any agreement among Escrow Agent to be genuine and to have been signed by the other parties hereto except this Agreementproper party or parties.
(c) 2.06 The Escrow Agent shall not be liableliable for any error of 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, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) 2.07 The Escrow Agent shall not be called upon to advise answerable for the default or misconduct of any party agent, attorney, or employee appointed by it if such agent, attorney, or employee shall have been selected with reasonable care.
2.08 The Escrow Agent may consult with legal counsel in the event of any dispute or question as to the wisdom in selling consideration of the foregoing instructions or retaining or taking or refraining from any action with respect to any securities or other property deposited the Escrow Agent’s duties hereunder.
(i) The Escrow Agent (, and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall incur no liability and shall be discharged of fully protected in acting in accordance with the opinion and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment instructions of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretocounsel.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) 2.09 In the event of any disagreement between the Buyer and undersigned or any of them, the Seller person or persons named in the foregoing instructions, and/or any other person, resulting in adverse claims or and/or demands being made in connection with the Escrowed Property and Interestor for any papers, if anymoney, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderproperty involved herein or affected hereby, the Escrow Agent shall be entitled at its option to retain refuse to comply with any such claim, or demand so long as such disagreement shall continue and, in so refusing, the Escrowed Property Escrow Agent shall not be or become liable to the undersigned or any of them or to any person named in the foregoing instructions for the failure or refusal to comply with such conflicting or adverse demands, and Interestthe Escrow Agent shall be entitled to continue to so refrain and refuse to so act until:
(a) the rights of adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the money, if anypapers, until and property involved herein or affected hereby; and/or
(b) all differences shall have been adjusted by agreement and the Escrow Agent shall have received (i) a Final Determination (as defined been notified thereof in Section 3(b) and accompanied writing signed by the opinion of counsel referred to in Section 3(b)) directing delivery all of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further questionpersons interested.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Proceeds Escrow Agreement (Renewable Energy Acquisition Corp.)
The Escrow Agent. To induce the Escrow Agent to act hereunder11.1 The duties, it is further agreed by the Buyer responsibilities and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties 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 Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions of Company or the Trustee is a party, even though reference thereto may be made herein, or to comply with any agreement among the direction or instruction (other parties hereto except than those contained herein or delivered in accordance with this Agreement.
(c) from the Company or the Trustee or an entity acting on its behalf. The Escrow Agent shall not be liable, except for required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder.
11.2 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 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 or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent reasonably complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, 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.
11.3 The Escrow 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 bad faith, gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Company or Trustee or any entity acting on behalf of the Company and the Trustee, given in accordance with the terms of this Agreement, (ii) for any successor escrow agent) from and against one-half of any and all lossesindirect, liabilitiesconsequential, claims, actions, punitive or special damages, regardless of the form of action and expenseswhether or not any such damages were foreseeable or contemplated, including reasonable attorneys' fees and disbursements(iii) for the acts or omissions of its nominees, arising out of and in connection with this Agreement. Without limiting correspondents, designees, agents, subagents or subcustodians, (iv) for the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation, limitation any liability for any delays (not resulting from its bad faith, gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property Escrow Property, or any loss of interest or income incident to any such delays. This Section 5(c, or (v) shall survive notwithstanding any termination for an amount in excess of this Agreement or the resignation value of the Escrow AgentProperty, valued as of the date of deposit, but only to the extent of direct money damages.
11.4 If any fees, reasonable out-of-pocket expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Property an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder.
11.5 The Escrow Agent may consult with one legal counsel of its own choosing, at the expense of the Company, as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
11.6 The Escrow Agent shall 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 the Escrow Agent (d) 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, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
11.7 The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so; provided that any Release Notice or Redemption Notice from the Company shall be executed by an Authorized Person.
(e) 11.8 The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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.
11.9 The Escrow Agent shall not be under any duty to give the Escrow Property held by it hereunder any greater degree of care than it gives similar escrow property held by ▇▇▇▇▇ Fargo Bank, National Association for similar escrow accounts and shall not be required to invest any funds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
11.10 When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent bad faith, gross negligence or willful misconduct, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Company or the Trustee or is not in the form the Company and the Trustee sent or intended to send (whether due to fraud, distortion or otherwise). The Company shall indemnify the Escrow Agent against any loss, liability, claim or reasonable out-of-pocket expense (including reasonable out-of-pocket legal fees and expenses) it may incur with its acting in accordance with any such communication.
11.11 In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Company or the Trustee, which eliminates such ambiguity or uncertainty.
11.12 In the event of any dispute between or conflicting claims among the Company and the Trustee and any other person or entity with respect to any Escrow Property, 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 the Trustee for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until, in its sole discretion, either (i) The Escrow Agent (and any successor escrow agent) may at any time resign as such conflicting or adverse claims or demands shall have been determined by delivering the Escrowed Property and Interesta final order, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing judgment or to any decree of a court of competent jurisdiction, whereupon which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall be discharged of have received security or an indemnity satisfactory to it sufficient to hold it harmless from and from against any and all further obligations arising in connection with this Agreementlosses which it may incur by reason of so acting. The resignation Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the Escrow Agent will take effect on rights of the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including parties by a court of competent jurisdiction) , and that the time for appeal from such order, judgment or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties heretodecree has expired without an appeal having been filed with such court. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the The Escrow Agent has not received a designation of a successor escrow agentshall act on such court order and legal opinions without further question. The Escrow Agent may, the Escrow Agent's in addition, elect, in its sole responsibility after the Resignation Date discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The reasonable out-of-pocket costs and expenses (including attorneys’ fees and expenses) incurred in connection with such proceeding shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction paid by the other parties heretoCompany.
(j) 11.13 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 conclusively rely without any liability upon the contents thereof.
(k) In 11.14 Except as otherwise stated herein, the event of Escrow Agent does not have any disagreement between interest in the Buyer Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Company shall pay or reimburse the Seller resulting in adverse claims Escrow Agent upon request for any transfer taxes or demands being made 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 way of such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrowed Property and Interest, if anyEscrow Agent with appropriate W-9 forms for tax identification number certifications, or in the event W-8 forms for non-resident alien certifications. It is understood that the Escrow Agent in good faith is in doubt as shall only be responsible for income reporting with respect to what action it should take hereunder, income earned on the Escrow Agent shall be entitled to retain the Escrowed Property and Interest, if any, until will not be responsible for any other reporting. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agent shall have received Agent.
(ia) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further questionreport to the Internal Revenue Service (the “IRS”) and to the Company, as of each calendar year-end, all income earned from the investment of any sum held in the Escrow Account, as and to the extent required under the provisions of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (the “Code”).
(lb) The compensation Company is required to prepare and file any and all income or other tax returns applicable to the Escrow Account with the IRS and all required state and local departments of revenue in all years income is earned in any particular tax year to the extent required under the provisions of the Escrow Agent Code.
(as payment c) Any taxes payable on income earned from the investment of any sums held in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder Account shall be paid by the Buyer. Any fees Company, whether or expenses of not the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held income was distributed by the Escrow Agent hereunderduring any particular year and to the extent required under the provisions of the Code.
(md) No prospectuses, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent's name or the rights, powers, or duties of the The Escrow Agent shall have no responsibility for the preparation and/or filing of any tax or information return with respect to any transactions, whether or not related to this Agreement, that occur outside the Escrow Account.
11.16 The Escrow Agent shall provide to the Company monthly statements identifying transactions, transfers or holdings of Escrow Property and each such statement shall be issued deemed to be correct and final upon receipt thereof by the other parties hereto or on such parties' behalf Company and the Trustee unless the Escrow Agent shall first have given its specific written consent theretois notified in writing, by the Company and the Trustee, to the contrary within thirty (30) Business Days of the date of such statement.
(n) The other 12.1 This Agreement embodies the entire agreement and understanding among the parties relating to the subject matter hereof.
12.2 This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
12.3 Each of the parties hereto authorize hereby irrevocably consents to the jurisdiction of the courts of the State of New York and of any Federal Court located in the Borough of Manhattan in such State in connection with any action, suit or other proceeding arising out of or relating to this Agreement or any action taken or omitted hereunder, and waives any claim of forum non conveniens and any objections as to laying of venue. Each party further waives personal service of any summons, complaint or other process and agrees that service thereof may be made by certified or registered mail directed to such person at such person’s address for purposes of notices hereunder.
12.4 All notices and other communications under this Agreement shall be in writing in English and shall be deemed given when delivered personally, on the next Business Day after delivery to a recognized overnight courier or mailed first class (postage prepaid) or when sent by facsimile to the parties (which facsimile copy shall be followed, in the case of notices or other communications sent to the Escrow Agent, by delivery of the original) at the following addresses (or to such other address as a party may have specified by notice given to the other parties pursuant to this provision): If to the Company: Chemtura Corporation Account for Payments ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ [—] ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: Chief Financial Officer and General Counsel with a copy to: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.C. If to the Trustee: U.S. Bank National Association Account for Payments EP MN WS3C [—] ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ St. ▇▇▇▇, MN 55107-1419 Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ with a copy to: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ If to the Escrow Agent: ▇▇▇▇▇ Fargo Bank, National Association ▇▇▇ ▇. ▇▇▇▇▇▇ Street Corporate Trust Department, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
12.5 The headings of the Sections of this Agreement have been inserted for convenience and shall not modify, define, limit or expand the express provisions of this Agreement.
12.6 This Agreement and the rights and obligations hereunder of parties hereto may not be assigned except with the prior written consent of the other parties hereto. This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and permitted assigns. Except as expressly provided herein, no other Person shall acquire or have any securities held hereunderrights under or by virtue of this Agreement. This Agreement is intended to be for the sole benefit of the parties hereto, and (subject to use the services provisions of this Section 12.6) their respective successors and assigns, and none of the provisions of this Agreement are intended to be, nor shall they be construed to be, for the benefit of any United States central securities depository it deems appropriatethird person.
12.7 This Agreement may not be amended, includingsupplemented or otherwise modified without the prior written consent of the parties hereto.
12.8 The Escrow Agent makes no representation as to the validity, but not limited tovalue, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
12.9 The parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act, the Depository Trust Company and the Federal Reserve Book Entry System.Escrow Agent, like all fina
Appears in 1 contract
Sources: Escrow Agreement (Chemtura CORP)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds Escrowed Property held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.into
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, shall jointly and severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c10(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has having only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein then in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f10(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date earlier of (the "Resignation DateRESIGNATION DATE") which is the earlier to occur of: ): (i) the date appointment of a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretohereto or a Final Determination.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if anyProperty, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)3) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if anyProperty, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year 250 paid by the Buyer Seller at the time of execution of this Agreement and $2,000 $ annually thereafter, together with reimbursement 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)) not to exceed $1,000 absent any litigation or other dispute arising under this Agreement. All fees and expenses of the Escrow Agent hereunder shall be paid by the BuyerSeller. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder. The Escrow Agent's fee may be adjusted from time to time to conform to its then current guidelines.
(m) No prospectuses, press releases, reports and promotional material material, or other similar materials which mentions mention in any language 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.,
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination loss or injury resulting from its actions or its performance or lack of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder in the absence of gross negligence or willful misconduct on its part. In no event shall the Escrow Agent be liable (including reasonable i) for acting in accordance with or relying upon (and shall be fully protected in relying upon) any instruction, notice, demand, certificate or document from the Borrower, any entity acting on behalf of the Borrower or any other person or entity which it reasonably believes to be genuine, (ii) for any indirect, consequential, punitive or special damages, even if advised of the possibility thereof, (iii) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians selected by it in good faith, or (iv) for an amount in excess of the value of the Escrow Amount.
(b) As security for the due and punctual performance of any and all of the Borrower’s obligations to the Escrow Agent hereunder, now or hereafter arising, the Borrower hereby pledges, assigns and grants to the Escrow Agent a continuing security interest in, and a lien on and right of setoff against, the Escrow Property and all Distributions thereon, investments thereof or additions thereto (whether such additions are the result of deposits by Depositor or the investment of Escrow Property or otherwise). If any fees, expenses and disbursements of its counsel). All fees and expenses of or costs incurred by, or any obligations owed to, the Escrow Agent hereunder shall be are not promptly paid by the Buyer. Any fees or expenses of when due, the Escrow Agent or its counsel which are not paid as provided for herein may be taken reimburse itself therefor from any property held by the Escrow Agent hereunder.
(m) No prospectusesProperty, press releasesand may sell, reports convey or otherwise dispose of any Escrow Property for such purpose. The security interest and promotional material or other similar materials which mentions the Escrow Agent's name or the rights, powers, or duties setoff rights of the Escrow Agent shall at all times be issued valid, perfected and enforceable by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent theretoagainst the Borrower and all third parties in accordance with the terms of this Escrow Agreement.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Company or the Dealer Manager is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Company, the Dealer Manager or an entity acting on its behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among of its duties hereunder.
(b) 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 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 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, Escrow Agent shall not be liable to any of the parties hereto except this Agreementor 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.
(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 or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless on its part. In no event shall the Escrow Agent be liable (and i) for acting in accordance with or conclusively relying upon any successor escrow agentinstruction, notice, demand, certificate or document from the Company, the Dealer Manager, or any entity acting on behalf of the Company, (ii) from and against one-half of for any and all lossesindirect, liabilitiesconsequential, claims, actions, punitive or special damages, and expensesmultiple damages under M.G.L. c. 93A or any other authority, including reasonable attorneys' damages for lost profits, damages for emotional distress, or attorney’s fees and disbursementscosts, arising out all regardless of the form of action and in connection with this Agreement. Without limiting whether or not any such damages were foreseeable or contemplated, (iii) for the foregoingacts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, (iv) for the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation, limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property Escrow Property, or any loss of interest or income incident to any such delays, or (v) for an amount in excess of the value of the Escrow Property, valued as of the date of deposit, but only to the extent of direct money damages. This Section 5(c) The provisions of this subsection shall survive notwithstanding any the termination of this Agreement or the earlier resignation or removal of the Escrow Agent.
(d) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not paid within fifteen (15) calendar days of when they are due, the Escrow Agent may reimburse itself therefor from the Escrow Property and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Property an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder.
(e) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Company as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel. Reliance on such advice of counsel shall not effect or be deemed to be a waiver of the Escrow Agent’s attorney-client privilege or any other applicable privilege or protection.
(f) The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism, the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility, or any computer or other technological malfunction).
(g) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eh) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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 shall not be under any duty to give the Escrow 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 in this Agreement.
(j) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent its own gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Company or the Dealer Manager or is not in the form the Company or the Dealer Manager sent or intended to send (whether due to fraud, distortion or otherwise). The Company shall indemnify the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may incur with its acting in accordance with any such communication.
(k) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Company which eliminates such ambiguity or uncertainty.
(l) In the event of any dispute between or conflicting claims among the Company and any successor escrow agent) may at other person or entity with respect to any time resign Escrow Property, 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 for so long as such by delivering dispute or conflict shall continue, and the Escrowed Property and InterestEscrow Agent shall not be or become liable in any way to the Company or any other person for failure or refusal to comply with such conflicting claims, if anydemands or instructions. The Escrow Agent shall be entitled to refuse to act until, to any successor escrow agent jointly designated its sole satisfaction, either (i) such conflicting or adverse claims or demands shall have been determined by the Buyer and the Seller in writing a final order, judgment or to any decree of a court of competent jurisdiction, whereupon which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall be discharged of have received security or an indemnity satisfactory to it sufficient to hold it harmless from and from against any and all further obligations arising in connection with this Agreementlosses which it may incur by reason of so acting. The resignation of Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent will take in its sole discretion, to the effect on that said order, judgment or decree represents a final adjudication of the date (rights of the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including parties by a court of competent jurisdiction) , and that the time for appeal from such order, judgment or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties heretodecree has expired without an appeal having been filed with such court. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the The Escrow Agent has not received a designation of a successor escrow agentmay act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed an obligation of, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoCompany.
(jm) 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 conclusively rely without any liability upon the contents thereof.
(kn) In the event of The Escrow Agent does not have any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or interest in the event that Escrow Property deposited hereunder but is serving as escrow holder only and 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 good faith is in doubt as to what action it should take hereunder, connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from this Escrow Account shall be entitled subject to retain withholding regulations then in force with respect to United States taxes. The Company or the Escrowed Property and Interest, if any, until Dealer Manager will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. This paragraph shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by survive notwithstanding any termination of this Agreement or the opinion of counsel referred to in Section 3(b)) directing delivery resignation or removal of the Escrowed Property and Interest, if any, or Escrow Agent.
(iio) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on provide to the Company and the Dealer Manager monthly statements identifying transactions, transfers or holdings of Escrow Property and each such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services statement shall be deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be Company and the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 Dealer Manager unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize is notified in writing, by the Escrow Agent, for any securities held hereunderCompany or the Dealer Manager, to use the services contrary within thirty (30) business days of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemdate of such statement. Section 12.
Appears in 1 contract
Sources: Subscription Escrow Agreement
The Escrow Agent. To induce 6.1 Notwithstanding anything herein to the contrary, the Escrow Agent to act hereunder, it is further agreed shall promptly dispose of all or any part of the Escrow Shares/Escrow Funds as directed by a writing jointly signed by the Buyer SAC Representative and SM&A. The reasonable fees and expenses of the Seller that:
Escrow Agent (aas set forth on the fee schedule attached hereto as SCHEDULE 3) in connection with its performance of this Agreement shall be borne by SM&A. The Escrow Agent shall not be liable for any act or omission to act under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth , including any and all the duties of claims made against the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against as a result of its holding the Escrow Agent. The Shares/Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liableFunds in its own name, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreementmisconduct. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent shall not be entitled liable for, and the Shareholders (only to rely the extent of their proportionate share of the Escrow Shares/Escrow Funds) and SM&A shall jointly and severally indemnify the Escrow Agent against, any losses or claims (including reasonable out-of-pocket expenses) arising out of, any action taken or omitted in good faith hereunder or upon any order, judgment, certification, demand, notice, instrument or other writing delivered the advice of counsel. The Escrow Agent may decline to it hereunder act and shall not be liable for failure to act if in accordance with the terms hereof without being required doubt as to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofits duties under this Agreement. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt any notice or advice or make any statement or execute any document in connection with the provisions hereof instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so.
(e) . The Escrow Agent may act pursuant to the advice of counsel Agent's duties shall be determined only with respect to any matter relating reference to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only applicable laws, and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half is not charged with knowledge of or any transfer taxes duties or other taxes relating to the Escrowed Property incurred responsibilities in connection herewith and shall indemnify and hold harmless the Escrow Agent from with any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company Merger Agreement.
6.2 The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at the addresses set forth herein or at such other address as the parties shall provide, at least 30 days prior to the date specified for such resignation to take effect. In such event SM&A and the Federal Reserve Book Entry SystemSAC Representative shall by agreement appoint a successor escrow agent within said 30 days; if SM&A and the SAC Representative do not agree upon the selection of a successor escrow agent within such period, the Escrow Agent may appoint a successor escrow agent. Upon the effective date of such resignation, the Escrow Shares together with all cash and other property then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in writing by SM&A and the SAC Representative.
6.3 In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the parties hereto, the Escrow Agent shall have the right to interplead said parties in any court of competent jurisdiction and request that such court determine the respective rights of such parties with respect to this Agreement and, upon doing so, the Escrow Agent shall be released from any obligations or liability to either party as a consequence of any such claims or demands. The reasonable fees and costs incurred by the Escrow Agent in interpleading said parties shall be borne equally by SM&A and the Shareholders as a group.
6.4 The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, inquire into or pass upon the validity, binding effect, execution or sufficiency of this Agreement or of any amendment or supplement hereto.
Appears in 1 contract
Sources: Escrow Agreement (Sm&a Corp)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller Representative that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds Escrowed Property held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, Representative shall jointly and severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c10(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has having only possession thereof. The Buyer and the Seller Representative shall each on a 50%/50% basis pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Atrium Indemnity Account shall be subject to withholding regulations therein then in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f10(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 or taking or refraining from taking 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller Representative on the appointment of such successor escrow agent. If If, at the Resignation Date Date, the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretohereto or a Final Determination to the effect that the Escrow Agent may transfer the Escrowed Property to another party without incurring liability under this Agreement.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller Securityholders resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if anyProperty, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)3) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller Representative directing delivery of the Escrowed Property and Interest, if anyProperty, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in fullfull except for the establishment, if necessary, of the Pending Claims Account) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by Buyer and the Buyer Securityholders on a 50%/50% basis at the time of execution of this Agreement and $2,000 annually thereafterAgreement, together with reimbursement 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)) not to exceed $1,000 absent any litigation or other dispute arising under this Agreement. All fees and expenses of the Escrow Agent hereunder shall be paid by Buyer and the BuyerSecurityholders on a 50%/50% basis. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder. The Escrow Agent's fee may be adjusted from time to time to conform to its then current guidelines. If the Escrow Agent establishes the Pending Claims Account under Section 5 of this Agreement, Buyer and the Securityholders shall pay the amount of $1,500 annually on a 50%/50% basis to the Escrow Agent for the set-up and administration of such Pending Claims Account.
(m) No prospectuses, press releases, reports and promotional material material, or other similar materials which mentions mention in any language 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.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Depositary Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Indemnification Escrow Agreement (Atrium Companies Inc)
The Escrow Agent. To induce (a) Notwithstanding anything herein to the contrary, the Escrow Agent to act hereunder, it is further agreed shall promptly dispose of all or any part of the Escrow Shares as directed by a writing jointly signed by the Buyer Stockholder Representative and the Seller that:
(a) Helix. The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property reasonable fees and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties expenses of the Escrow Agent in connection with respect to any its execution and all matters pertinent hereto. No implied duties or obligations performance of this Agreement as set forth on Schedule II hereto shall be read into this Agreement against the Escrow Agentborne by Helix. The Escrow Agent shall not be bound by the provisions of liable for any agreement among the other parties hereto except act or failure to act under this Agreement.
(c) The , including any and all claims made against the Escrow Agent shall not be liableas a result of its holding the Escrow Shares in its own name, except for its own gross negligence or willful misconduct andmisconduct. The Escrow Agent shall not be liable for, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and Helix and the Seller shallStockholders shall agree, severally jointly and not jointlyseverally, to indemnify and hold harmless the Escrow Agent and its directors, employees, officers, agents, successors and assigns against, any losses or claims (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees out-of-pocket expenses and disbursements, attorney fees) arising out of any action taken or omitted in good faith hereunder and in connection with this Agreement. Without limiting the foregoing, reasonable costs of investigation and counsel fees and expenses which may be imposed on the Escrow Agent shall in no event be liable or reasonably incurred by it in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination acceptance of this Agreement appointment or the resignation performance of the Escrow Agent.
(d) its duties hereunder. The Escrow Agent may decline to act and shall not be entitled liable for failure to rely act if in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered doubt as to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofits duties under this Agreement. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt any notice or advice or make any statement or execute any document in connection with the provisions hereof instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so.
(e) . The Escrow Agent may act pursuant to the advice of counsel Agent's duties shall be determined only with respect to any matter relating reference to this Agreement and shall applicable law and the Escrow Agent is not be liable for charged with knowledge of or any action taken duties or omitted responsibilities in good faith in accordance connection with such adviceany other document or agreement, including without limitation, the Merger 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 only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(jb) The Escrow Agent shall have no responsibility the right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at the addresses set forth herein or at such other address as the parties shall provide, at least thirty days prior to the date specified for the contents of any writing of any third party contemplated herein as a means such resignation to resolve disputes and may rely without any liability upon the contents thereof.
(k) take effect. In the such event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection Helix shall with the Escrowed Property and Interestapproval of the Stockholder Representative, which approval shall not be unreasonably withheld, appoint a successor escrow agent within that thirty-day period; if any, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderHelix does not designate a successor escrow agent within such period, the Escrow Agent shall be entitled to retain may appoint a successor escrow agent. Upon the Escrowed Property and Interesteffective date of such resignation, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered Fund then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in writing by Helix and the amount of $2,500 for Stockholder Representative.
(c) In the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by event that the Escrow Agent in performance of its duties hereunder (including reasonable feesshould at any time be confronted with inconsistent or conflicting claims or demands by the other parties hereto, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by have the Buyer. Any fees right to interplead the parties in any Massachusetts court or expenses any court of competent jurisdiction and request that such court determine the respective rights of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectusesparties with respect to this Agreement and, press releasesupon doing so, reports and promotional material or other similar materials which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by released from any obligations or liability to the other parties hereto as a consequence of any such claims or on such parties' behalf unless demands.
(d) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. Nothing in this Agreement shall be deemed to impose upon the Escrow Agent any duty to qualify to do business or to act as fiduciary or otherwise in any jurisdiction other than the Commonwealth of Massachusetts. The Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize not be responsible for and shall not be under a duty to examine, inquire into or pass upon the Escrow Agentvalidity, for any securities held hereunderbinding effect, to use the services execution or sufficiency of this Agreement or of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemamendment or supplement hereto.
Appears in 1 contract
The Escrow Agent. To induce 4.1 The obligations of the Escrow Agent are limited to act hereunderthose specifically provided in this Agreement and no other, it is further agreed by the Buyer and the Seller that:
(a) Escrow Agent shall have no liability under, and no duty to inquire into the terms and provisions of, any agreement between the parties hereto. The Escrow Agent shall not be under any duty is acting hereunder as an accommodation to give the 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 Escrowed Property held hereunder except as directed in this Agreementparties hereto. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the The duties of the Escrow Agent with respect to are purely ministerial in nature, and it shall not incur any and all matters pertinent hereto. No implied duties liability whatsoever, except for its willful misconduct or obligations shall be read into this Agreement against the Escrow Agentgross negligence. The Escrow Agent may consult with counsel of its choice (which may be a member of its own firm), and shall not be bound by liable for following the provisions advice of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofcounsel. The Escrow Agent may act in reliance upon on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel.
4.2 The Holders and the Pledgor jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and hold harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages, fees and expenses (including reasonable attorney's fees and expenses either paid to retained attorneys or amounts representing the fair value of legal services, based on its customary billing rates, rendered to itself) which the Escrow Agent, its successors or assigns may at any instrument time of times hereafter bear, sustain, suffer or signature believed be put unto for or by it in good faith to be genuine and may assume that any person purporting to give receipt reason arising out of or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice performance of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith its obligations in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination provisions of this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance with the terms hereof. The foregoing indemnities in this Section 4.2 shall survive the resignation or substitution of the Escrow Agent and the termination of this Agreement.
4.3 In case proceedings should hereafter be taken in any court respecting the Securities, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Section 4.2 against its costs of such proceedings.
4.4 The Escrow Agent will have no responsibility in respect of the physical loss of the Securities.
4.5 The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Securities as herein directed and to deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Securities or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) 4.6 The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other item deposited with it or of any signature thereon or for the identity, authority or right of any person executing or depositing the same and shall not have any liability for acting in accordance with any written instructions or certificates given to it hereunder signed by the proper parties.
4.7 In no event will the Escrow Agent be called deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to advise bring it to its attention.
4.8 In the event that the Securities are attached, garnished or levied upon under any party as court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the wisdom in selling contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or retaining or taking or refraining from any action with respect decrees it will not be liable to any securities of the parties hereto or to any other property deposited hereunderperson, firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated.
(i) 4.9 The Escrow Agent (is authorized and directed to disregard in its sole discretion any successor escrow agent) and all notices and warnings which may at be given to it by any time resign as such of the parties hereto or by delivering any other person, firm, association or corporation. It will, however, obey the Escrowed Property and Interestorder, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing judgment or to decree of any court of competent jurisdiction, whereupon and it is hereby authorized to comply with and obey such orders, judgments or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated.
4.10 If protest is made to any action, contemplated by the Escrow Agent under this Agreement, the Escrow Agent may continue to hold the Securities until the right to the documents is legally determined by a court of competent jurisdiction or otherwise.
4.11 If written notice of protest is made by any of the Holders or the Pledgor to the Escrow Agent to any action contemplated by the Escrow Agent under this Agreement, and such notice sets out reasons for such protest the Escrow Agent will be entitled to continue to hold the Securities until the right to the documents is legally determined by a court of competent jurisdiction or otherwise.
4.12 This Agreement may be terminated at any time by and upon the receipt by the Escrow Agent of ten (10) days' written notice of termination executed by the Holders and the Pledgor, directing the distribution of all property then held by the Escrow Agent under and pursuant to this Agreement. In the event that a dispute arises in connection with the release of the Securities, the Escrow Agent shall have the sole and absolute right to resign in accordance with the provisions of this Section 4.12. The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving at least ten (10) days' prior written notice of such resignation to the Holders and Pledgor and specifying a date upon which such resignation shall take effect. Upon receipt of such notice, a successor escrow agent shall jointly be appointed by the Holders and Pledgor, such successor escrow agent to become the Escrow Agent hereunder on the resignation date specified in such notice. If no successor Escrow Agent is appointed prior to the date specified, the Escrow Agent shall have the right at any time to deposit the Securities with a court of competent jurisdiction, as specified in Section 6.5 hereof, and the Escrow Agent shall have no further obligation with respect thereto. The Holders and Pledgor, acting jointly, may at any time substitute a new escrow agent by giving ten (10) days' notice thereof to the Escrow Agent then acting and paying all fees and expenses of such Escrow Agent. In the alternative, in the event of a dispute in relation to the release of the Securities, the Escrow Agent may resign fifteen (15) days after giving written notice of such resignation to the parties hereto and depositing the Securities with an appropriate court, as specified in Section 6.5 hereof, and the Escrow Agent shall have no further obligation with respect hereto or under this Agreement, in any manner. This Agreement shall automatically terminate if and when all of the Securities shall have been distributed by the Escrow Agent in accordance with the terms of this Agreement.
4.13 Notwithstanding anything herein to the contrary, the Escrow may act upon any written instructions given by the Pledgor and all of the Holders jointly.
4.14 If any dispute should arise with respect to the ownership or right of possession of the Securities, or should the Escrow Agent, in its sole judgement, receive conflicting instructions with respect to the instructions contained in this Agreement or to any distribution of the Securities, the Escrow Agent is authorized and directed to retain in its possession, without liability to anyone, all or any portion of the Securities until such dispute shall have been settled either by agreement of the parties concerned by filing of written directions signed by the Holders and Pledgor to the Escrow Agent or by a final decree, but the Escrow Agent shall be discharged under no duty whatsoever to institute or defend any such proceedings. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between any of the Holders and from the Pledgor or between any and all further obligations other persons or between any of them with respect to the Pledge Agreement, this Agreement or any matters arising in connection thereto, or with this Agreement. The resignation of respect to the Pledged Stock, the Escrow Agent may in its sole discretion deliver and interplead the Securities into court, as specified in Section 6.5 hereof, and such delivery and interpleading will take effect on the date (the "Resignation Date") which is the earlier be an effective discharge to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) 4.15 The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes be promptly reimbursed, jointly and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied severally by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property Holders and InterestPledgor, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances expenses incurred or made by the Escrow Agent in the performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, services pursuant to use the services of any United States central securities depository it deems appropriate, this Agreement including, but not limited to, legal fees, including all fees and expenses incurred in connection with its resignation pursuant to Section 4.12.
4.16 The parties hereto hereby expressly agree, acknowledge and consent that the Depository Trust Company Escrow Agent has served as legal counsel for the Holders and shall be permitted to provide legal counsel to any and all parties to this Agreement, in the Federal Reserve Book Entry Systemfuture, notwithstanding the agreements set forth herein including, without limitation, any controversy or dispute arising out of this Agreement and waive any claims of conflict of interest relating thereto.
4.17 The Holders and Pledgor shall each bear all of their own fees and expenses incurred by them in resolving any dispute arising under this Agreement. The Holders and Pledgor shall jointly and severally reimburse the Escrow Agent for any costs incurred by the Escrow Agent in connection with any dispute arising under this Agreement. The Holders and Pledgor shall jointly and severally reimburse the Escrow Agent for any costs incurred in the performance of its duties hereunder.
Appears in 1 contract
Sources: Escrow Agreement (Merlin Software Technologies International Inc)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder.
(b) 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 Escrow Amount (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 Amount), the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing deems appropriate; provided, that notice of such fact shall be given to the Company as soon as reasonably practicable so that appropriate action may be taken by the provisions Company; 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 the Company or to any agreement among the other parties hereto except this Agreementperson 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.
(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 or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with on its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agentpart.
(d) The Escrow Agent may consult with a single legal counsel of its own choosing, at the expense of the Company, as to any matter relating to this Agreement.
(e) The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(f) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive 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 receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eg) The In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent may act pursuant to hereunder, the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for Escrow Agent may, in its sole discretion, refrain from taking any action taken other than to retain possession of the Escrow Amount, unless the Escrow Agent receives written instructions, signed by the Company which eliminates such ambiguity or omitted in good faith in accordance with such adviceuncertainty.
(fh) The Escrow Agent does not have any interest in the Escrowed Property Escrow Amount deposited hereunder but is serving as escrow holder only and has having only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account Amount shall be subject to withholding regulations therein then in force with respect to United States taxes. The Company will provide the Escrow Agent with a Form W-9 for tax identification number certification. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property Escrow Amount and is will not be responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (shall provide to the Company monthly statements identifying transactions, transfers or holdings of Escrow Amount and any successor escrow agent) may at any time resign as each such by delivering the Escrowed Property statement shall be deemed to be correct and Interest, if any, to any successor escrow agent jointly designated final upon receipt thereof by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 Company unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize is notified in writing, by the Escrow Agent, for any securities held hereunderCompany, to use the services contrary within thirty (30) business days of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemdate of such statement.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Parent shall pay the Escrow Agent's fee for its ordinary services under this Agreement in accordance with the fee schedule set forth on Schedule B attached hereto.
(b) In performing any duties under this Agreement, the Escrow Agent shall not be under any duty to give liable for damages, losses, or expenses, except for gross negligence or willful misconduct on the Escrowed Property held by it hereunder any greater degree part of care than it gives its own similar property and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not incur any such liability for (i) any act or failure to act made or omitted in good faith, or (ii) any action taken or omitted in reliance upon any instrument, including any written statement or affidavit provided for in this Agreement that such agent shall in good faith believe to be bound by genuine, nor will the provisions Escrow Agent be liable or responsible for forgeries, fraud, impersonations, or determining the scope of any agreement among representative authority. In addition, the other parties hereto except Escrow Agent may consult with legal counsel in connection with its duties under this Agreement and shall be fully protected in any act taken, suffered, or permitted by it in good faith in accordance with the advice of counsel. The Escrow Agent is not responsible for determining and verifying the authority of any such person acting or purporting to act on behalf of any party to this Agreement.
(c) If any controversy arises between the parties to this Agreement, or with any other party, concerning the subject matter of this Agreement, its terms or conditions, the Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Escrow Agent shall may hold the Escrow Fund and may wait for settlement of any such controversy by arbitration pursuant to Section 8 hereof, by final appropriate legal proceedings or other means as, in the Escrow Agent's discretion, may be required, despite what may be set forth elsewhere in this Agreement. In such event, the Escrow Agent will not be liableliable for interest or damage. Furthermore, the Escrow Agent may at its option, file an action of interpleader requiring the parties to answer and litigate any claims and rights among themselves. The Escrow Agent is authorized to deposit with the clerk of the court the entire Escrow Fund, except for its own such part of the Escrow Fund as shall reimburse the Escrow Agent for all costs, expenses, charges and reasonable attorney fees incurred by the Escrow Agent due to the interpleader action and which the parties jointly and severally agree to pay. Upon initiating such action, the Escrow Agent shall be fully released and discharged of and from all obligations and liabilities imposed by the terms of this Agreement, except for obligations or liabilities arising by reason of the prior gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against on the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation part of the Escrow Agent.
(d) The Company (to the extent of the Escrow Fund only) and Parent shall jointly and severally indemnify and hold harmless the Escrow Agent shall for any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and attorneys' fees) which it may incur or which may be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to imposed on it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized performance of the Escrow Agent's duties under this Agreement, including but not limited to do soany litigation arising from this Agreement, except losses, claims, damages, liabilities or expenses arising out of gross negligence or willful misconduct on the part of the Escrow Agent.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 resign at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date upon giving at least thirty (the "Resignation Date"30) which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its days' written notice of resignation to the other parties hereto. Upon parties; provided, however, that no such resignation shall become effective until the appointment of a successor escrow agent, such agent which shall be accomplished as follows: The parties shall use their best efforts to mutually agree on a successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of within thirty (30) days after receiving such successor escrow agentnotice. If at the Resignation Date the Escrow Agent has not received a designation of parties fail to agree upon a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunderwithin such time, the 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 deliver an instrument accepting such appointment, and it shall, without further acts, be entitled to retain vested with all the Escrowed Property estates, properties, rights, powers and Interest, if any, until duties of the predecessor Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (originally named as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent's name or . Upon such appointment, the rights, powers, or duties of the predecessor Escrow Agent shall be issued discharged from any further duties and liability under this Agreement, except for obligations or liabilities arising by reason of the other parties hereto prior gross negligence or willful misconduct on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize part of the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce (a) Notwithstanding anything herein to the contrary, the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under deliver all or any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties part of the Escrow Shares as directed by a writing jointly signed by the Shareholders' Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow AgentParent as soon as practicable upon receipt of such notice. The Escrow Agent shall not be bound by liable for any act or failure to act under this Escrow Agreement, including any and all claims made against the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liableas a result of its holding the Escrow Shares or Escrow Cash Dividends in its own name, except for its own gross negligence negligence, bad faith or willful misconduct andmisconduct. Subject to the foregoing, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow AgentAgent shall not be liable for, the Buyer and Parent and the Seller Shareholders' Agent shall, severally jointly and not jointlyseverally, indemnify and hold harmless the Escrow Agent and its directors, employees, officers, agents, successors and assigns against any losses or claims (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees out-of-pocket expenses and disbursements, attorney fees) arising out of any action taken or omitted hereunder and in connection with this Agreement. Without limiting the foregoing, reasonable costs of investigation and counsel fees and expenses which may be imposed on the Escrow Agent shall in no event be liable or reasonably incurred by it in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination acceptance of this Agreement appointment or the resignation performance of the Escrow Agent.
(d) its duties hereunder. The Escrow Agent may decline to act and shall not be entitled liable for failure to rely act if in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered doubt as to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofits duties under this Escrow Agreement. The Escrow Agent may act in reliance upon any instrument or signature (including wire transfer instructions) believed by it in good faith to be genuine and may assume that any person purporting to give receipt any notice or advice or make any statement or execute any document in connection with the provisions hereof instruction hereunder, believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to the express duties set forth in this Escrow Agreement, each of which duties are ministerial in nature, and applicable law. The Escrow Agent shall not be deemed to be a fiduciary and is not charged with knowledge of or any duties or responsibilities in connection with any other document or agreement, including without limitation, the Merger Agreement and the Amendment Agreement. The parties hereto agree that the use of defined terms incorporated by reference to the Merger Agreement and the Amendment Agreement is solely for the convenience of the other parties, and the Escrow Agent may rely on the use of defined terms in any communication received by it. In no event will the Escrow Agent be liable for punitive, special or consequential damages or losses (including lost profits) whatsoever, even if the Escrow Agent has been informed of the likelihood of such damages or losses. The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of the Escrow Agent or the termination of this Escrow Agreement.
(b) Parent agrees to (i) pay the Escrow Agent upon execution of this Escrow Agreement and annually thereafter reasonable compensation for the services to be rendered hereunder, which unless otherwise agreed in writing shall be as set forth in ANNEX D attached hereto, and (ii) pay or reimburse the Escrow Agent upon request for all expenses, disbursements and advances, including reasonable attorneys' fees and expenses, incurred or made by it in connection with the preparation, execution, performance, delivery, modification and termination of this Escrow Agreement.
(c) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at the addresses set forth herein or at such other address as the parties shall provide, at least thirty days prior to the date specified for such resignation to take effect. The Escrow Agent shall have the right to withhold an amount equal to any amount due and owing to the Escrow Agent, plus any costs and expenses the Escrow Agent shall reasonably believe may be incurred by the Escrow Agent in connection with the termination of this Escrow Agreement. In such event Parent shall with the approval of the Shareholders' Agent, which approval shall not be unreasonably withheld, appoint a successor escrow agent within that thirty-day period; if Parent does not designate a successor escrow agent within such period, the Escrow Agent may appoint a successor escrow agent. Upon the effective date of such resignation, the Escrow Shares and Escrow Cash Dividends then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in writing by Parent and the Shareholders' Agent. If no successor escrow agent is appointed as provided herein, the Escrow Agent may apply to a court of competent jurisdiction for appointment of a successor escrow agent.
(d) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its opinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by all of the other parties hereto or by a final order or judgment of a court of competent jurisdiction. The Escrow Agent may consult counsel satisfactory to it, including in-house counsel, and will be protected in respect of any action taken or omitted in reliance thereon.
(e) The Escrow Agent may act pursuant execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. Nothing in this Escrow Agreement shall be deemed to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse impose upon the Escrow Agent upon request for one-half of any transfer taxes duty to qualify to do business in any jurisdiction other than New York or other taxes relating to the Escrowed 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 way of such taxesact as fiduciary. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called responsible for and shall not be under a duty to examine, inquire into or pass upon to advise the validity, binding effect, execution or sufficiency of this Escrow Agreement or of any party as to the wisdom in selling amendment 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties supplement hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the (a) The Escrow Agent undertakes to act hereunderperform only such duties as are expressly set forth herein.
(b) The Escrow Agent may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it is further agreed hereunder and reasonably believed by it to be genuine and to have been signed or presented by the Buyer and the Seller that:proper party or parties.
(ac) The Escrow Agent shall not be under liable for any duty action taken by it in good faith and reasonably believed by it to give be authorized or within the Escrowed Property held rights or powers conferred upon it by this Escrow Agreement, and may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder any greater degree in good faith and in accordance with the opinion of care than it gives its own similar property and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interestsuch counsel.
(bd) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its opinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by all of the other parties hereto or by a final order or judgment of a court of competent jurisdiction.
(f) 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 agreement among the other parties hereto except this Escrow Agreement and shall not be deemed to have knowledge of nor responsibility under the terms of the Merger Agreement.
(c) . The Escrow Agent shall not be liableunder no duty to inquire into or investigate the validity, except for its own gross negligence accuracy or willful misconduct andcontent of any such document.
(g) Hubb▇▇▇ ▇▇▇ the Shareholder Representative (on behalf of the Shareholders) hereby agree, except with respect jointly and severally, to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all costs, losses, claims, damages, liabilities, claims, actions, damages, and expenses, including reasonable costs of investigation, court costs, and attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, which may be imposed upon the Escrow Agent shall in no event be liable in connection with its investment or reinvestment acceptance of any cash held by it hereunder in good faith, in accordance with the terms hereofappointment as Escrow Agent hereunder, including without limitation, any liability for any delays (not resulting litigation arising from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or involving the resignation subject matter hereof, except in the case of the Escrow Agent.
(d) The 's own willful default or gross negligence; 50% of any such amount shall be payable by Hubb▇▇▇ ▇▇▇ 50% shall be payable by the Shareholder Representative on behalf of the Shareholders. Anything in this agreement to the contrary notwithstanding, in no event shall 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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for special, indirect or consequential loss or damage of any action taken or omitted in good faith in accordance with such advice.
kind whatsoever (f) The Escrow Agent does including but not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse limited to lost profits), even if the Escrow Agent upon request for one-half has been advised of any transfer taxes the likelihood of such loss or other taxes relating to damage and regardless of the Escrowed Property incurred in connection herewith and form of action; provided, however, that this sentence shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay not apply in the way case of such taxes. Any payments of income from gross negligence or bad faith on the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation part of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under bound in any way by, or be deemed to have knowledge of, or any duty to give under, the Escrowed Property held by Asset Purchase Agreement or any other agreement between or among the parties hereto, other than this Agreement. The Escrow Agent shall have no duties other than those expressly imposed on it hereunder any greater degree of care than it gives its own similar property herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent liable with respect to any and all matters pertinent heretoaction taken by it, or any failure on its part to act, except to the extent that such actions constitute a breach of this Agreement, bad faith, fraud, gross negligence or willful misconduct. No implied duties or obligations In no event shall be read into this Agreement against the Escrow AgentAgent be liable for incidental, indirect, special, consequential or punitive damages. 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 by any party to this Agreement. The Escrow Agent shall not be bound by the provisions of obligated to take any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence legal action or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and commence any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and proceedings in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall or to appear in, prosecute or defend in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement legal action or the resignation of the Escrow Agentproceedings.
(db) The Escrow Agent makes no representations and has no responsibility as to the validity, genuineness or sufficiency of any of the documents or instruments delivered to it hereunder. The Escrow Agent (i) shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent thereof and (ii) 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, receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) . The Escrow Agent may act pursuant to in reliance upon the advice of counsel with respect satisfactory to it in reference to any matter relating to in connection with this Agreement and shall not be liable incur any liability for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kc) In the event of any disagreement between the Buyer and the Seller other parties hereto resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if anyEscrow Fund, 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 Escrowed Property and Interest, if any, refrain from acting until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion final nonappealable order of counsel referred to in Section 3(b)) a court of competent jurisdiction directing delivery of the Escrowed Property and Interest, if any, amount of the Escrow Fund in dispute or (ii) a written agreement instructions jointly executed by the Buyer Seller and the Seller Purchaser directing delivery of the Escrowed Property and Interest, if anyamount of the Escrow Fund in dispute, in which event the Escrow Agent shall disburse deliver the Escrowed Property and Interest, if any, amount of the Escrow Fund in dispute in accordance with such Final Determination order or agreementinstructions. Any court order referred to in clause (i) above shall be accompanied by a legal opinion by counsel for the presenting party reasonably satisfactory to the Escrow Agent to the effect that said order or determination is final and nonappealable. The Escrow Agent shall act on such Final Determination or agreement court order and legal opinion without further question.
(l) The compensation questions. In addition, in the event of the Escrow Agent (as payment in full) for the services any dispute or disagreement relating to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by concerning the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 hereunder, the Escrow Agent shall first have given its specific written consent thereto.
(n) The other the right to deposit all property held under this Agreement into the registry of any court of competent jurisdiction and notify the parties hereto authorize of such deposit, and thereupon the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company Agent shall be discharged from all further duties and the Federal Reserve Book Entry Systemresponsibilities as Escrow Agent under this Agreement.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and 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 or willful misconduct on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or relying upon (and shall be fully protected in relying upon) any instruction, notice, demand, certificate or document from each of the Interested Parties, (ii) for any indirect, consequential, punitive or special damages, even if advised of the possibility thereof, (iii) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians selected by it in good faith, or (iv) for an amount in excess of the value of the Escrow Property.
(b) As security for the due and punctual performance of any and all of the Interested Parties’ obligations to the Escrow Agent hereunder, now or hereafter arising, the Interested Parties, individually and collectively, hereby pledge, assign and grant to the Escrow Agent a continuing security interest in, and a lien on and right of setoff against, the Escrow Property and all Distributions thereon, investments thereof or additions thereto (whether such additions are the result of deposits by Depositor or the investment of Escrow Property or otherwise). If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property, and may sell, convey or otherwise dispose of any Escrow Property for such purpose. The security interest and setoff rights of the Escrow Agent shall at all times be valid, perfected and enforceable by the Escrow Agent against the Interested Parties and all third parties in accordance with the terms of this Escrow Agreement.
(c) The Escrow Agent may consult with legal counsel at the expense of the Interested Parties as to any matter relating to this Escrow Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any written advice from such advicecounsel.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(hd) The Escrow Agent shall not be called upon to advise incur any party as to the wisdom in selling liability for not performing any act or retaining fulfilling any duty, obligation 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 responsibility hereunder by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents reason of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon occurrence beyond the contents thereof.
(k) In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation control of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, 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 Depository Trust Company and unavailability of the Federal Reserve Book Entry SystemBank wire or telex or other wire or communication facility).
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not have only those duties as are specifically and expressly provided herein, which shall be under deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any duty requirements to give comply with, the Escrowed Property held by it hereunder terms and conditions of any greater degree other agreement, instrument or document between the other parties hereto, in connection herewith, if any, including without limitation the Trust Agreement (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any person or entity has complied with any such agreements, nor shall any additional obligations of care than it gives its own similar property the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Escrow Agreement. In the event of any conflict between the terms and provisions of this Escrow Agreement and those of the Underlying Agreement or any other agreement among the other parties hereto, the terms and conditions of this Escrow Agreement shall control. The Escrow Agent may rely upon and shall not be required liable for acting or refraining from acting upon any written notice, document, instruction or request furnished to invest it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties without inquiry and without requiring substantiating evidence of any Escrowed Property held hereunder except as directed in this Agreementkind. Uninvested funds held hereunder The Escrow Agent shall not earn be under no duty to inquire into or accrue interestinvestigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments which may be due it or any Fund, including, without limitation, the Escrow Deposits nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. The Escrow Agent shall have no duty or obligation to make any calculations of any kind hereunder.
(b) This Agreement expressly sets forth all the duties of the The Escrow Agent with respect shall not be liable for any action taken, suffered or omitted to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against taken by it except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either the Managing Owner or Trust. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys and shall be liable only for its gross negligence or willful misconduct (as finally adjudicated in a court of competent jurisdiction) in the selection of any such agent or attorney. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken taken, suffered or omitted in good faith to be taken by it in accordance with such advice.
(f) The Escrow Agent does not have any interest with, or in reliance upon, the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay advice or reimburse the Escrow Agent upon request for one-half opinion of any transfer taxes such counsel, accountants or other taxes relating to skilled persons. In the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood event that the Escrow Agent shall be responsible for income reporting only uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its opinion, conflict with respect to income earned on investment any of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination provisions of this Agreement Escrow Agreement, it shall be entitled to refrain from taking any action and subject to applicable law or regulation, its sole obligation shall be to keep safely all property held in escrow until it shall be given a direction in writing by the resignation Managing Owner and the Trust which eliminates such ambiguity or uncertainty to the satisfaction of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability by a final and non-appealable order or judgment of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) . The Managing Owner and Trust agree to pursue any redress or (ii) recourse in connection with any dispute without making the date which is 30 days after the date of delivery of its written notice of resignation Escrow Agent a party to the other parties heretosame. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice Anything in this Escrow Agreement to the Buyer and contrary notwithstanding, in no event shall the Seller on the appointment Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of such successor escrow agent. If at the Resignation Date any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery been advised of the Escrowed Property likelihood of such loss or damage and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery regardless of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreementform of action. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation Any liability of the Escrow Agent (as payment in full) for the services under this Escrow Agreement will be limited to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year fees paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar materials which mentions to 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Subscription Escrow Agreement (Brookshire Raw Materials (U.S.) Energy USD Fund)
The Escrow Agent. To induce the Escrow Agent to act hereunder10.1 The duties, it is further agreed by the Buyer responsibilities and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties 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 Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions of Company or the Administrative Agent is a party, even though reference thereto may be made herein, or to comply with any agreement among the direction or instruction (other parties hereto except than those contained herein or delivered in accordance with this Agreement.
(c) from the Company or the Administrative Agent or an entity acting on its behalf. The Escrow Agent shall not be liable, except for required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder.
10.2 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 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 or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent reasonably complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, 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.
10.3 The Escrow 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 bad faith, gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Company or Administrative Agent, or any entity acting on behalf of the Company and the Administrative Agent, given in accordance with the terms of this Agreement, (ii) for any successor escrow agent) from and against one-half of any and all lossesindirect, liabilitiesconsequential, claims, actions, punitive or special damages, regardless of the form of action and expenseswhether or not any such damages were foreseeable or contemplated, including reasonable attorneys' fees and disbursements(iii) for the acts or omissions of its nominees, arising out of and in connection with this Agreement. Without limiting correspondents, designees, agents, subagents or subcustodians, (iv) for the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation, limitation any liability for any delays (not resulting from its bad faith, gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property Escrow Property, or any loss of interest or income incident to any such delays. This Section 5(c, or (v) shall survive notwithstanding any termination for an amount in excess of this Agreement or the resignation value of the Escrow AgentProperty, valued as of the date of deposit, but only to the extent of direct money damages.
10.4 If any fees, reasonable out-of-pocket expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Property an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder.
10.5 The Escrow Agent may consult with one legal counsel of its own choosing, at the expense of the Company, as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
10.6 The Escrow Agent shall 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 the Escrow Agent (d) 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, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
10.7 The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so; provided that any Release Notice or Prepayment Notice from the Company shall be executed by an Authorized Person.
(e) 10.8 The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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.
10.9 The Escrow Agent shall not be under any duty to give the Escrow Property held by it hereunder any greater degree of care than it gives similar escrow property held by ▇▇▇▇▇ Fargo Bank, National Association for similar escrow accounts and shall not be required to invest any funds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
10.10 When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent bad faith, gross negligence or willful misconduct, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Company or the Administrative Agent or is not in the form the Company and the Administrative Agent sent or intended to send (whether due to fraud, distortion or otherwise). The Company shall indemnify the Escrow Agent against any loss, liability, claim or reasonable out-of-pocket expense (including reasonable out-of-pocket legal fees and expenses) it may incur with its acting in accordance with any such communication.
10.11 In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Company or the Administrative Agent, which eliminates such ambiguity or uncertainty.
10.12 In the event of any dispute between or conflicting claims among the Company and the Administrative Agent and any other person or entity with respect to any Escrow Property, 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 the Administrative Agent for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until, in its sole discretion, either (i) The Escrow Agent (and any successor escrow agent) may at any time resign as such conflicting or adverse claims or demands shall have been determined by delivering the Escrowed Property and Interesta final order, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing judgment or to any decree of a court of competent jurisdiction, whereupon which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall be discharged of have received security or an indemnity satisfactory to it sufficient to hold it harmless from and from against any and all further obligations arising in connection with this Agreementlosses which it may incur by reason of so acting. The resignation Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the Escrow Agent will take effect on rights of the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including parties by a court of competent jurisdiction) , and that the time for appeal from such order, judgment or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties heretodecree has expired without an appeal having been filed with such court. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the The Escrow Agent has not received a designation of a successor escrow agentshall act on such court order and legal opinions without further question. The Escrow Agent may, the Escrow Agent's in addition, elect, in its sole responsibility after the Resignation Date discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The reasonable out-of-pocket costs and expenses (including attorneys’ fees and expenses) incurred in connection with such proceeding shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction paid by the other parties heretoCompany.
(j) 10.13 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 conclusively rely without any liability upon the contents thereof.
(k) In 10.14 Except as otherwise stated herein, the event of Escrow Agent does not have any disagreement between interest in the Buyer Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Company shall pay or reimburse the Seller resulting in adverse claims Escrow Agent upon request for any transfer taxes or demands being made 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 way of such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrowed Property and Interest, if anyEscrow Agent with appropriate W-9 forms for tax identification number certifications, or in the event W-8 forms for non-resident alien certifications. It is understood that the Escrow Agent in good faith is in doubt as shall only be responsible for income reporting with respect to what action it should take hereunder, income earned on the Escrow Agent shall be entitled to retain the Escrowed Property and Interest, if any, until will not be responsible for any other reporting. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agent shall have received Agent.
(ia) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further questionreport to the Internal Revenue Service (the “IRS”) and to the Company, as of each calendar year-end, all income earned from the investment of any sum held in the Escrow Account, as and to the extent required under the provisions of the Internal Revenue Code.
(lb) The compensation Company is required to prepare and file any and all income or other tax returns applicable to the Escrow Account with the IRS and all required state and local departments of revenue in all years income is earned in any particular tax year to the extent required under the provisions of the Escrow Agent Internal Revenue Code.
(as payment c) Any taxes payable on income earned from the investment of any sums held in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder Account shall be paid by the Buyer. Any fees Company, whether or expenses of not the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held income was distributed by the Escrow Agent hereunderduring any particular year and to the extent required under the provisions of the Internal Revenue Code.
(md) No prospectuses, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent's name or the rights, powers, or duties of the The Escrow Agent shall have no responsibility for the preparation and/or filing of any tax or information return with respect to any transactions, whether or not related to this Agreement that occurs outside the Escrow Account.
10.16 The Escrow Agent shall provide to the Company monthly statements identifying transactions, transfers or holdings of Escrow Property and each such statement shall be issued deemed to be correct and final upon receipt thereof by the other parties hereto or on such parties' behalf Company and the Administrative Agent unless the Escrow Agent shall first have given its specific written consent theretois notified in writing, by the Company and the Administrative Agent, to the contrary within thirty (30) Business Days of the date of such statement.
(n) The other 11.1 This Agreement embodies the entire agreement and understanding among the parties relating to the subject matter hereof.
11.2 This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
11.3 Each of the parties hereto authorize hereby irrevocably consents to the jurisdiction of the courts of the State of New York and of any Federal Court located in the Borough of Manhattan in such State in connection with any action, suit or other proceeding arising out of or relating to this Agreement or any action taken or omitted hereunder, and waives any claim of forum non conveniens and any objections as to laying of venue. Each party further waives personal service of any summons, complaint or other process and agrees that service thereof may be made by certified or registered mail directed to such person at such person’s address for purposes of notices hereunder.
11.4 All notices and other communications under this Agreement shall be in writing in English and shall be deemed given when delivered personally, on the next Business Day after delivery to a recognized overnight courier or mailed first class (postage prepaid) or when sent by facsimile to the parties (which facsimile copy shall be followed, in the case of notices or other communications sent to the Escrow Agent, by delivery of the original) at the following addresses (or to such other address as a party may have specified by notice given to the other parties pursuant to this provision): If to the Company: Chemtura Corporation Account for Payments ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ [•] ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: Chief Financial Officer General Counsel with a copy to: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: Yongjin Im If to the Administrative Agent: Bank of America, N.A. Account for Payments Agency Management [•] ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇ Mail Code: CA5-701-05-19 ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: Anthea Del ▇▇▇▇▇▇ with a copy to: Shearman & Sterling LLP ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ If to the Escrow Agent: ▇▇▇▇▇ Fargo Bank, National Association ▇▇▇ ▇. ▇▇▇▇▇▇ Street Corporate Trust Department, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
11.5 The headings of the Sections of this Agreement have been inserted for convenience and shall not modify, define, limit or expand the express provisions of this Agreement.
11.6 This Agreement and the rights and obligations hereunder of parties hereto may not be assigned except with the prior written consent of the other parties hereto. This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and permitted assigns. Except as expressly provided herein, no other Person shall acquire or have any securities held hereunderrights under or by virtue of this Agreement. This Agreement is intended to be for the sole benefit of the parties hereto, and (subject to use the services provisions of this Section 11.6) their respective successors and assigns, and none of the provisions of this Agreement are intended to be, nor shall they be construed to be, for the benefit of any United States central securities depository it deems appropriatethird person.
11.7 This Agreement may not be amended, includingsupplemented or otherwise modified without the prior written consent of the parties hereto.
11.8 The Escrow Agent makes no representation as to the validity, but not limited tovalue, genuineness or the Depository Trust Company and the Federal Reserve Book Entry System.collectability of any security or other document or instrument held by or de
Appears in 1 contract
Sources: Escrow Agreement (Chemtura CORP)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and 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 or willful misconduct on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or relying upon (and shall be fully protected in relying upon) any instruction, notice, demand, certificate or document from the Borrower, any entity acting on behalf of the Borrower or any other person or entity which it reasonably believes to be genuine, (ii) for any indirect, consequential, punitive or special damages, even if advised of the possibility thereof, (iii) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians selected by it in good faith, or (iv) for an amount in excess of the value of the Escrow Amount.
(b) As security for the due and punctual performance of any and all of the Borrower’s obligations to the Escrow Agent hereunder, now or hereafter arising, the Borrower hereby pledges, assigns and grants to the Escrow Agent a continuing security interest in, and a lien on and right of setoff against, the Escrow Property and all Distributions thereon, investments thereof or additions thereto (whether such additions are the result of deposits by Depositor or the investment of Escrow Property or otherwise). If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property, and may sell, convey or otherwise dispose of any Escrow Property for such purpose. The security interest and setoff rights of the Escrow Agent shall at all times be valid, perfected and enforceable by the Escrow Agent against the Borrower and all third parties in accordance with the terms of this Escrow Agreement.
(c) The Escrow Agent may consult with legal counsel at the expense of the Borrower as to any matter relating to this Escrow Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such advicecounsel.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(hd) The Escrow Agent shall not be called upon to advise incur any party as to the wisdom in selling liability for not performing any act or retaining fulfilling any duty, obligation 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 responsibility hereunder by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents reason of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon occurrence beyond the contents thereof.
(k) In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation control of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, 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 Depository Trust Company and unavailability of the Federal Reserve Book Entry SystemBank wire or telex or other wire or communication facility).
Appears in 1 contract
The Escrow Agent. To induce 4.1 In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent to will act hereunderhonestly and in good faith and will exercise that degree of care, it is further agreed by the Buyer diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
4.2 The Company and the Seller that:Investor jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent’s compliance in good faith with the terms hereof.
(a) 4.3 In case proceedings should hereafter be taken in any court respecting the Shares and Warrants, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security against its costs of such proceedings.
4.4 The Escrow Agent shall not be under any will have no responsibility in respect of loss of the Shares and Warrants except the duty to give exercise such care in the Escrowed Property held by safekeeping thereof as it hereunder any greater degree of care than it gives its own similar property would exercise if the Shares and shall not be required Warrants belonged to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel.
4.5 The Escrow Agent will not be bound in any way by any contract between the provisions of any agreement among the other parties hereto except this Agreementwhether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Shares and Warrants as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth.
(c) The 4.6 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall not be liablesufficient if any writing purporting to be such a notice, except for demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its own gross negligence attention.
4.7 In the event that the Shares and Warrants are attached, garnished or willful misconduct andlevied upon under any court order, except with respect to claims based upon or if the delivery of such gross negligence property is stayed or willful misconduct that are successfully asserted against enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Buyer Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without D/BIP/644415.2 jurisdiction, notwithstanding any provision of this Agreement to the Seller shall, severally and not jointly, indemnify and hold harmless contrary. If the Escrow Agent (obeys and complies with any successor escrow agent) from and against one-half such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any and all lossesother person, liabilitiesfirm or corporation by reason of such compliance, claimsnotwithstanding that such writs, actionsorders, damagesjudgments or decrees may be subsequently reversed, and expensesmodified, including reasonable attorneys' fees and disbursementsannulled, arising out of and in connection with this Agreement. Without limiting the foregoingset aside or vacated.
4.8 Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall in no event not be liable in connection with its investment or reinvestment of by reason thereof to any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property parties hereto or any loss of interest incident to any other person, firm, association or corporation, even if thereafter any such delaysorder, judgment or decree may be reversed, modified, annulled, set aside or vacated.
4.9 If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Shares and Warrants until the lawful determination of the issue between the parties hereto.
4.10 If protest is made to any action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may continue to hold the Shares and Warrants until the right to the Shares and Warrants is legally determined by a court of competent jurisdiction or otherwise.
4.11 The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days’ written notice thereof to each of the Company or the Investor. This Section 5(cThe Company and the Investor may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) shall days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Company and the Investor may agree upon. All indemnities granted to the Escrow Agent will survive notwithstanding any the termination of this Agreement or the resignation or termination of the Escrow Agent.
(d) The Escrow Agent shall be entitled 4.12 Notwithstanding anything herein to rely in good faith upon any orderthe contrary, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed written instructions given by it in good faith to be genuine the Company and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do soInvestor jointly.
(e) The 4.13 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Company and the Investor or between any other persons or between any of them with respect to this Agreement or any matters arising thereto, or with respect to the Shares and Warrants, the Escrow Agent may act pursuant in its sole discretion deliver and interplead the Shares and Warrants into court and such delivery and interpleading will be an effective discharge to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunderunder this Agreement, it is further agreed by the Buyer IRS and the Seller Kollmans that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds Escrowed Property held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties Parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer IRS and the Seller shall, Kollmans shall jointly and severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder under this Agreement but is serving as escrow holder only and has having only possession thereof. The Buyer and the Seller Kollmans shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed Property incurred in connection herewith with this Agreement and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein then in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the earlier of such date (the "Resignation Date") which is the earlier to occur of: ): (i) the date appointment of a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties Parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer IRS and the Seller Kollmans on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoParties hereto or a Final Determination.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer IRS and the Seller Kollmans resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if anyProperty, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer IRS and the Seller Kollmans directing delivery of the Escrowed Property and Interest, if anyProperty, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination agreement. The Escrow Agent shall not be or agreementbecome liable in any way or to any person for its failure or refusal to act during any pending disagreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer Kollmans at the time of execution of this Agreement and $2,000 2,500 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer) not to exceed $1,000, absent any litigation or other dispute arising under this Agreement. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein in this Agreement may be taken from any property held by the Escrow Agent hereunderProperty.
(m) No prospectuses, press releases, reports and promotional material material, or other similar materials which mentions mention in any language the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties Parties hereto or on such partiesParties' behalf unless the Escrow Agent shall first have given its specific written consent thereto; provided, however, that the Escrow Agent acknowledges that the IRS may file a copy of this Agreement as an exhibit with the IRS's filings required under the Securities Exchange Act of 1934, as amended, and the Escrow Agent consents to the appearance of its name in such filings.
(n) The other parties Parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Depositary Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Pledge and Escrow Agreement (Cell Tech International Inc)
The Escrow Agent. To induce 6.1 Notwithstanding anything herein to the contrary, the Escrow Agent to act hereunder, it is further agreed shall promptly dispose of all or any part of the Escrow Funds as directed by the Buyer a writing jointly signed by SM&A and the Seller that:
Shareholder Representative. The reasonable fees and expenses of the Escrow Agent (aas set forth on the fee schedule attached hereto as Schedule 6.1) in connection with its performance of ------------ this Agreement shall be borne by SM&A. The Escrow Agent shall not be liable for any act or omission to act under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth , including any and all the duties of claims made against the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against as a result of its holding the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liableFunds in its own name, except for its own gross negligence or willful misconduct andmisconduct, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and SM&A and the Seller shallShareholders shall jointly and severally indemnify, severally and not jointly, indemnify defend and hold harmless the Escrow Agent (and any successor escrow agent) its affiliates, agents, employees, contractors, successors and assigns from and against one-half of any and all losses, liabilities, claims, actions, damages, and expensesdemands, including liens, claims of lien, losses, actions or liability of any kind or nature whatsoever, which Escrow Agent may sustain, incur or be subjected to or which may be imposed on Escrow Agent including, without limitation, reasonable attorneys' fees and disbursementslitigation costs, arising to the extent they arise out of and in connection or are connected with this Escrow Agreement. Without limiting , unless arising from the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment misconduct of the Escrowed Property or any loss Escrow Agent. The provisions of interest incident to any such delays. This Section 5(c) this indemnification shall survive notwithstanding any the termination of this Agreement or the resignation of the Escrow Agent.
(d) Agreement. The Escrow Agent may decline to act and shall not be entitled liable for failure to rely act if in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered doubt as to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofits duties under this Agreement. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt any notice or advice or make any statement or execute any document in connection with the provisions hereof instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so.
(e) . The Escrow Agent may act pursuant to the advice of counsel Agent's duties shall be determined only with respect to any matter relating reference to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only applicable laws, and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half is not charged with knowledge of or any transfer taxes duties or other taxes relating to the Escrowed Property incurred responsibilities in connection herewith and shall indemnify and hold harmless the Escrow Agent from with any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company Purchase Agreement. In the event of a dispute arising out of or in connection with this Escrow Agreement involving the Escrow Agent, all legal representation required to defend the Escrow Agent shall be provided at the joint and several expense of SM&A and the Federal Reserve Book Entry SystemShareholders.
6.2 The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at the addresses set forth herein or at such other address as the parties shall provide, at least 30 days prior to the date specified for such resignation to take effect. In addition, the Escrow Agent shall have the right to resign hereunder immediately by written notice to the parties hereto if the fees of Escrow Agent are not paid when due. In such event, SM&A and the Shareholder Representative shall by agreement appoint a successor escrow agent within said 30 days; if SM&A and the Shareholder Representative do not agree upon the selection of a successor escrow agent within such period, the Escrow Agent may appoint a successor escrow agent. Upon the effective date of such resignation, the Escrow Funds together with all other property, if any, then held by the Escrow Agent hereunder, shall be deposited with such successor escrow agent or as otherwise shall be designated in writing by SM&A and the Shareholder Representative. In addition, the Escrow Agent shall have the right to resign hereunder immediately by written notice to the parties hereto if the fees and expenses of Escrow Agent (as set forth on the fee schedule attached hereto as Schedule 6.1) are not paid ------------ when due. The other parties hereto reserve the right to remove the Escrow Agent by joint written notice at any time; provided that such notice is given to the Escrow Agent at least thirty (30) days prior to the effectiveness of such removal.
6.3 In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the parties hereto, the Escrow Agent shall have the right to interplead said parties in any court of competent jurisdiction and request that such court determine the respective rights of such parties with respect to this Agreement and, upon doing so, the Escrow Agent shall be released from any obligations or liability to either party as a consequence of any such claims or demands. The reasonable fees and costs incurred by the Escrow Agent in interpleading said parties shall be borne equally by SM&A and the Shareholders as a group.
6.4 The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, inquire into or pass upon the validity, binding effect, execution or sufficiency of this Agreement or of any amendment or supplement hereto.
Appears in 1 contract
Sources: Escrow Agreement (Sm&a Corp)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under bound in any way by, or be deemed to have knowledge of, or any duty to give under, the Escrowed Property held by Asset Purchase Agreement or any other agreement between or among the parties hereto, other than this Agreement. The Escrow Agent shall have no duties other than those expressly imposed on it hereunder any greater degree of care than it gives its own similar property herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent liable with respect to any and all matters pertinent heretoaction taken by it, or any failure on its part to act, except to the extent that such actions constitute a breach of this Agreement, bad faith, fraud, gross negligence or willful misconduct. No implied duties or obligations In no event shall be read into this Agreement against the Escrow AgentAgent be liable for incidental, indirect, special, consequential or punitive damages. 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 by any party to this Agreement. The Escrow Agent shall not be bound by the provisions of obligated to take any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence legal action or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and commence any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and proceedings in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall or to appear in, prosecute or defend in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement legal action or the resignation of the Escrow Agentproceedings.
(db) The Escrow Agent makes no representations and has no responsibility as to the validity, genuineness or sufficiency of any of the documents or instruments delivered to it hereunder. The Escrow Agent (i) shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent thereof and (ii) 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, receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) . The Escrow Agent may act pursuant to in reliance upon the advice of counsel with respect satisfactory to it in reference to any matter relating to in connection with this Agreement and shall not be liable no incur any liability for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kc) In the event of any disagreement between the Buyer and the Seller other parties hereto resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if anyRental Escrow Fund, 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 Escrowed Property and Interest, if any, refrain from acting until the Escrow Agent shall have received (i) a court order, arbitration award, or joint instructions constituting a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if anyResolution, in which event the Escrow Agent shall disburse deliver the Escrowed Property and Interest, if any, amount of the Rental Escrow Fund in dispute in accordance with such Final Determination Resolution. In addition, in the event of any dispute or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services disagreement relating to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by concerning the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent hereunder, the Rental Escrow Agent shall be issued by have the other right to deposit all property held under this Agreement into the registry of any court of competent jurisdiction and notify the parties hereto or on of such parties' behalf unless deposit, and thereupon the Escrow Agent shall first have given its specific written consent theretobe discharged from all further duties and responsibilities as Escrow Agent under this Agreement.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce (a) Notwithstanding anything herein to the contrary, the Escrow Agent to act hereunder, it is further agreed shall promptly dispose of all or any part of the Escrow Shares as directed by a writing jointly signed by the Buyer Stockholder Representative and the Seller that:
(a) Buyer. The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property reasonable fees and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties expenses of the Escrow Agent in connection with respect to any the preparation of this Escrow Agreement and all matters pertinent hereto. No implied duties or obligations its execution and performance of this Escrow Agreement as set forth on Schedule II hereto shall be read into this Agreement against borne by the Escrow AgentBuyer. The Escrow Agent shall not be bound by liable for any act or failure to act under this Escrow Agreement, including any and all claims made against the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liableas a result of its holding the Escrow Materials in its own name, except for its own gross negligence or willful misconduct andmisconduct. The Escrow Agent shall not be liable for, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the Buyer and the Seller Company Stockholders shall, severally jointly and not jointlyseverally, indemnify and hold harmless the Escrow Agent against any losses or claims (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees out-of-pocket expenses and disbursements, attorney fees) arising out of any action taken or omitted hereunder and in connection with this Agreement. Without limiting the foregoing, reasonable costs of investigation and counsel fees and expenses which may be imposed on the Escrow Agent shall in no event be liable or reasonably incurred by it in connection with its investment acceptance of this appointment or reinvestment performance of any cash held by it hereunder its duties hereunder, except in good faith, in accordance with the terms hereof, including without limitation, any liability for any delays (not resulting from its event such loss or claim arises out of an action or omission of the Escrow Agent which constitutes gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent may decline to act and shall not be entitled liable for failure to rely act if in good faith upon any orderreasonable doubt as to its duties under this Escrow Agreement, judgment, certification, demand, notice, instrument or other writing delivered but only for so long as reasonably necessary for the Escrow Agent to it hereunder in accordance with take reasonable measures (including the terms hereof without being required measures described under Section 9(c) hereof) to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofsuch duties. The Escrow Agent may act in reliance upon any instrument or signature (including wire transfer instructions) reasonably believed by it in good faith to be genuine and may assume that any person purporting to give receipt any notice or advice or make any statement or execute any document in connection with the provisions hereof instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to this Escrow Agreement and applicable law and the Escrow Agent is not charged with knowledge of or any duties or responsibilities in connection with any other document or agreement, including without limitation, the Merger Agreement (other than defined terms in the Merger Agreement that are not otherwise defined herein).
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(hb) The Escrow Agent shall not be called upon to advise any party as to have 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 right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at the addresses set forth herein or at such other address as the parties shall provide, at least thirty days prior to the date specified for such by delivering resignation to take effect. In such event the Escrowed Property and Interest, if any, to any Buyer shall appoint a successor escrow agent jointly designated acceptable to the Stockholder Representative (which acceptance may not be unreasonably withheld) by the Buyer and date of the Seller in writing or to any court expiration of competent jurisdictionsuch thirty-day period. If no successor escrow agent is appointed as provided herein, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier may apply to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days jurisdiction for appointment of a successor escrow agent. From and after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agentagent in accordance with the terms hereof, such successor escrow agent shall deliver written notice to be deemed the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the "Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto" for all purposes hereunder.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(kc) In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take at any time be (i) confronted with inconsistent or conflicting claims or demands by the other parties hereto or (ii) unsure of its duties hereunder, the Escrow Agent shall have the right to inter plead the parties in any court of competent jurisdiction and request that such court determine the respective rights of the parties with respect to this Escrow Agreement.
(d) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. Nothing in this Escrow Agreement shall be entitled deemed to retain impose upon the Escrowed Property and InterestEscrow Agent any duty to qualify to do business in any jurisdiction other than The Commonwealth of Massachusetts or to act as fiduciary.
(e) Notwithstanding anything to the contrary, the Escrow Agent is not required to release or distribute Escrow Materials sooner than two (2) business days after the Escrow Agent has received the requisite notices or paperwork in good form, or passage of the applicable claims period or release date, as the case may be.
(f) Notwithstanding anything herein to the contrary, at any time that the Escrow Agent is authorized or directed or otherwise required to make a disbursement or distribution of the Escrow Materials, the Escrow Agent may refrain from making such disbursement or distribution, without liability, if anyand to the extent that there are any fees or expenses then due to the Escrow Agent by the party to which such disbursement or distribution is to be made pursuant hereto. Upon receipt of payment for such fees or expenses, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, promptly make such disbursement or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further questiondistribution.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and 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 or willful misconduct on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or relying upon (and shall be fully protected in relying upon) any instruction, notice, demand, certificate or document from any Interested Party, any entity acting on behalf of any Interested Party or any other person or entity which it reasonably believes to be genuine, (ii) for any indirect, consequential, punitive or special damages, even if advised of the possibility thereof, (iii) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians selected by it in good faith, or (iv) for an amount in excess of the value of the Escrow Property.
(b) As security for the due and punctual performance of any and all of the Interested Parties’ obligations to the Escrow Agent hereunder, now or hereafter arising, the Interested Parties, individually and collectively, hereby pledge, assign and grant to the Escrow Agent a continuing security interest in, and a lien on and right of setoff against, the Escrow Property and all Distributions thereon, investments thereof or additions thereto (whether such additions are the result of deposits by the Company or the investment of the Escrow Property or otherwise). If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property, and may sell, convey or otherwise dispose of any Escrow Property for such purpose. The security interest and setoff rights of the Escrow Agent shall at all times be valid, perfected and enforceable by the Escrow Agent against the Interested Parties and all third parties in accordance with the terms of this Escrow Agreement.
(c) The Escrow Agent may consult with legal counsel at the expense of the Company as to any matter relating to this Escrow Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such advicecounsel.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(hd) The Escrow Agent shall not be called upon to advise incur any party as to the wisdom in selling liability for not performing any act or retaining fulfilling any duty, obligation 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 responsibility hereunder by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents reason of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon occurrence beyond the contents thereof.
(k) In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation control of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, 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 Depository Trust Company and unavailability of the Federal Reserve Book Entry SystemBank wire or telex or other wire or communication facility).
Appears in 1 contract
Sources: Securities Purchase Agreement (Cellect Biotechnology Ltd.)
The Escrow Agent. To induce (a) Except as expressly contemplated by this Agreement or by joint written instructions signed by an authorized signatory of both Parent and the Stockholders’ Representative, the Escrow Agent shall not sell, transfer or otherwise dispose of all or any portion of the Escrow Fund, except pursuant to act an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement (and, solely to the extent specifically incorporated by reference herein, the Merger Agreement), and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, and no implied covenants shall be read into this Agreement against the Escrow Agent.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely without any investigation into the underlying facts upon any certificate, statement, opinion, report, notice, request, consent, order, approval, document, instrument, signature or other paper document believed by it is further agreed in good faith to be genuine and signed by any party or parties hereto or an authorized officer or agent thereof, and shall not be required to investigate the Buyer truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any Person purporting to give any notice in accordance with the provisions of this Agreement has been duly authorized to do so.
(d) Parent and the Seller that:Stockholders’ Representative (on behalf of the Stockholders), jointly and severally, shall be liable for and shall reimburse and indemnify Escrow Agent and hold Escrow Agent (and its officers, directors, employees and agents) harmless from and against any and all losses, liabilities, damages or expenses (including reasonable attorneys’ fees, costs and disbursements) that the Escrow Agent may suffer or incur in connection with this Agreement and its performance hereunder or in connection herewith, except to the extent such loss, liability, damage or expense arises from its willful misconduct, bad faith or gross negligence as adjudicated by a court of competent jurisdiction; provided, however, in seeking reimbursement or indemnification from the Stockholders’ Representative hereunder, the Escrow Agent (or any of its officers, directors, employees or agents) may make a claim against, and shall only be reimbursed from, the Escrow Fund, and, in no event shall the Stockholders’ Representative be liable for any claims in its individual capacity. This Section 5.1(d) shall survive the termination of this Agreement and the resignation or removal of the Escrow Agent.
(ae) The Escrow Agent shall not be under any no duty to give the Escrowed Property property held in escrow by it hereunder any greater degree of care than it gives its own similar property property.
(f) The fees and expenses of the Escrow Agent are set forth on Schedule B attached hereto. The Escrow Agent’s annual fee shall not be required to invest any Escrowed Property held hereunder except as directed in payable upon the execution of this Agreement and thereafter on each anniversary date of this Agreement. Uninvested funds held The first annual fee payable to the Escrow Agent hereunder shall be paid to the Escrow Agent by Parent. Thereafter the annual fee shall be paid one-half by Parent and one-half by the Stockholders (payable solely from the Escrow Fund). The Escrow Agent shall be entitled to receive all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Escrow Agent in connection with this Agreement. All such expenses, disbursements and advances, and any fees in addition to the annual fee, payable to the Escrow Agent hereunder shall be paid to the Escrow Agent one-half by Parent and one-half by the Stockholders (payable solely from the Escrow Fund). The Escrow Agent shall give the Stockholders’ Representative and Parent prompt written notice of all payments made to the Escrow Agent from the Escrow Fund pursuant to this Section 5.1(f). Except as set forth herein, the Escrow Agent does not earn have and will not have any interest in the funds deposited hereunder but is serving only as escrow holder and having only possession thereof. This Section 5.1(f) shall survive the termination of this Agreement and the resignation or accrue interestremoval of the Escrow Agent.
(bg) This The Escrow Agent shall be reimbursed upon request for all reasonable out-of-pocket expenses, disbursements and advances, including reasonable fees of outside counsel and of all persons not regularly in its employ, if any, incurred or made by it in connection with the preparation of this Agreement expressly sets forth or any other documents executed in connection herewith and the carrying out of its duties under this Agreement. All such fees and expenses shall be paid to the Escrow Agent one-half by Parent and one-half on behalf of the Stockholders (payable solely from the Escrow Fund). The obligations of Parent and the Stockholders under this Section 5.1(g) to compensate the Escrow Agent and to pay or reimburse the Escrow Agent for reasonable out-of-pocket expenses, disbursements and advances shall survive the satisfaction and discharge of this Agreement or the earlier resignation or removal of the Escrow Agent.
(h) The Escrow Agent may, in its sole discretion, resign and terminate its position hereunder at any time following thirty (30) Business Days’ written notice to the parties to this Agreement. Any such resignation shall terminate all the obligations and duties of the Escrow Agent with respect hereunder. The Stockholders’ Representative and Parent may at any time jointly remove the Escrow Agent by giving twenty (20) Business Days’ written notice signed by each of them to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The If the Escrow Agent shall not resign or be bound removed, a successor Escrow Agent, which shall be a bank or trust company having its principal executive offices in the United States and having assets in excess of five hundred million dollars ($500,000,000), and which shall be mutually agreeable to Parent and the Stockholders’ Representative and appointed by written instrument executed by the provisions Stockholders’ Representative and Parent and delivered to the Escrow Agent and to such successor Escrow Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent shall become effective and such successor Escrow Agent, without any agreement among further act, deed or conveyance, shall become vested with all right, title and interest to all cash and property held hereunder of such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of an authorized signatory of both the Stockholders’ Representative and Parent, execute and deliver to such successor Escrow Agent all the right, title and interest hereunder in and to the Escrow Fund of such predecessor Escrow Agent and all other rights hereunder of such predecessor Escrow Agent. If no successor Escrow Agent shall have been appointed within twenty (20) Business Days of a notice of resignation by the Escrow Agent, the Escrow Agent’s sole responsibility shall thereafter be to hold the Escrow Fund until the earlier of (i) its receipt of designation of a successor Escrow Agent in a joint written instruction by the Stockholders’ Representative and Parent and (ii) termination of this Agreement in accordance with its terms. If no successor Escrow Agent shall have been appointed within twenty (20) Business Days of the Escrow Agent’s delivery of a notice of resignation, the Escrow Agent may apply to a court of competent jurisdiction for such appointment, or other appropriate relief. Any such resulting appointment shall be binding upon all of the parties hereto except to this Agreement.
(i) Within five (5) Business Days following the end of each calendar month prior to termination of this Agreement, the Escrow Agent will supply an official account statement to the Parent and the Stockholders’ Representative setting forth (a) the then current balance of the Escrow Fund, (b) the details of each transaction in the account during such month, and (c) a description of the amount and type of the individual investment positions in the Escrow Fund as of such time.
(j) The Escrow Agent shall does not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against have any interest in the Escrow AgentAccount but is serving as escrow holder only and having only possession thereof. Upon request, the Buyer Escrow Agent shall be paid or reimbursed for any transfer taxes related to the Escrow Fund incurred in connection herewith, and Parent and the Seller shallStockholders’ Representative (on behalf of the Stockholders), severally jointly and not jointlyseverally, shall indemnify and hold harmless the Escrow Agent (from any amounts that the Escrow Agent is obligated to pay in the way of such taxes, with responsibility for such payment, reimbursement, indemnity or holding the Escrow Agent harmless to be borne by Parent and any successor escrow agent) by the Stockholders’ Representative; provided, however, in seeking reimbursement or indemnification from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoingStockholders’ Representative hereunder, the Escrow Agent may make a claim against, and shall only be reimbursed from, the Escrow Fund, and, in no event shall the Stockholders’ Representative be liable for any claims in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitationindividual capacity. If necessary under applicable law, any liability for any delays (not resulting payments of income from its gross negligence or willful misconduct) the Escrow Fund shall be subject to withholding regulations then in the investment or reinvestment of the Escrowed Property or any loss of interest incident force with respect to any such delaysU.S. taxes. This Section 5(c5.1(j) and Section 5.1(g) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(gk) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(hl) 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(km) In the event of any disagreement between the Buyer and the Seller other parties hereto resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if anyEscrow Fund, 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 such portion of the Escrowed Property and Interest, if any, Escrow Fund that is subject to such adverse claims or demands until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion final nonappealable order of counsel referred to in Section 3(b)) a court having jurisdiction directing delivery of the Escrowed Property and Interest, if anyEscrow Fund presented to the Escrow Agent by the prevailing party, or (ii) a written agreement executed by the Buyer and parties hereto (other than the Seller Escrow Agent) directing delivery of the Escrowed Property and Interest, if anyEscrow Fund, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, Escrow Fund in accordance with such Final Determination order, judgment or agreement. Any court order shall be accompanied by a legal opinion of counsel for the presenting party reasonably satisfactory to the Escrow Agent to the effect that said order or judgment is final and nonappealable. The Escrow Agent shall act on such Final Determination court order or agreement judgment and legal opinion without further question.
(ln) The compensation Escrow Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction of Parent and the Stockholders’ Representative given under this Agreement. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder.
(o) None of the provisions of this Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds, or indemnity satisfactory to it against such risk or liability, is not assured to it.
(p) Whenever in the administration of the provisions of this Agreement the Escrow Agent shall deem it necessary or desirable that a matter be provided or established prior to taking or suffering any action to be taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence, bad faith or willful misconduct on the part of the Escrow Agent, be deemed to be conclusively proved and established by a certificate signed by an authorized signatory of both Parent and the Stockholders’ Representative and delivered to the Escrow Agent, and such certificate, in the absence of gross negligence, bad faith or willful misconduct on the part of the Escrow Agent, shall be full warrant to the Escrow Agent for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof as adjudicated by a court of competent jurisdiction.
(q) In no event shall the Escrow Agent be liable for the selection of the investment of the Escrow Fund as provided in Article IV or for investment losses incurred thereon. The Escrow Agent shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of Parent and the Stockholders’ Representative to give timely written liquidation direction.
(r) The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or indirectly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any bad faith, willful misconduct or gross negligence on part of any agent, attorney, custodian or nominee so appointed as adjudicated by a court of competent jurisdiction.
(s) Any corporation into which the Escrow Agent 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 shall be a party, or any corporation succeeding to the business of the Escrow Agent, shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding, so long as such successor entity shall be a bank or trust company having its principal executive offices in the United States having assets in excess of five hundred million dollars (as payment in full$500,000,000).
(t) Each of the parties (for itself and any person or entity claiming through it) hereby (i) releases, waives, discharges and exculpates Escrow Agent for any action taken or omitted under this Agreement, except to the services to be rendered extent caused by the Escrow Agent’s gross negligence, bad faith or willful misconduct as adjudicated by a court of competent jurisdiction, and (ii) covenants not to ▇▇▇ the Escrow Agent hereunder for any action taken or omitted under this Agreement, except to the extent caused by the Escrow Agent’s gross negligence, bad faith or willful misconduct. Anything in this 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 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.
(u) The Escrow Agent shall be neither responsible for or under, nor chargeable with knowledge of, the amount terms and conditions of $2,500 for any other agreement, instrument or document executed between or among the initial year paid by parties hereto, except as may be specifically provided in Exhibit A attached hereto. This Agreement sets forth all of the Buyer obligations of the Escrow Agent, and no additional obligations shall be implied from the terms of this Agreement or any other agreement, instrument or document.
(v) The Escrow Agent shall invest the property held in escrow in the manner set forth in Article IV, even though Citibank or its affiliates may receive a benefit or profit therefrom. The Escrow Agent and its affiliates are authorized to act as counterparty, principal, agent, broker or dealer while purchasing or selling investments as specified herein.
(w) In the event funds transfer instructions are given (other than in writing at the time of execution of this Agreement and $2,000 annually thereafterAgreement), together with reimbursement for all reasonable expenseswhether in writing, disbursements and advances incurred by telecopier or made by otherwise, the Escrow Agent in performance is authorized to seek confirmation of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid such instructions by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.telep
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a1) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Company is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from the Company or an entity acting on its behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among the other parties hereto except this Agreementof its duties hereunder.
(c2) 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 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 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, 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.
(a) 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 or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless on its part. In no event shall the Escrow Agent be liable (and i) for acting in accordance with or conclusively relying upon any successor escrow agentinstruction, notice, demand, certificate or document from the Company or any entity acting on behalf of the Company, (ii) from and against one-half of for any and all lossesindirect, liabilitiesconsequential, claims, actions, punitive or special damages, regardless of the form of action and expenseswhether or not any such damages were foreseeable or contemplated, including reasonable attorneys' fees and disbursements(iii) for the acts or omissions of its nominees, arising out of and in connection with this Agreement. Without limiting correspondents, designees, agents, subagents or subcustodians, (iv) for the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation, limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property Escrow Property, or any loss of interest or income incident to any such delays. This Section 5(c, or (v) shall survive notwithstanding any termination for an amount in excess of this Agreement or the resignation value of the Escrow AgentProperty, valued as of the date of deposit, but only to the extent of direct money damages.
(b) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Property an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder.
(c) As security for the due and punctual performance of any and all of the Company's obligations to the Escrow Agent hereunder, now or hereafter arising, the Company hereby pledges, assigns and grants to the Escrow Agent a continuing security interest in, and a lien on, the Escrow Property and all Earnings thereon or additions thereto. The security interest of the Escrow Agent shall at all times be valid, perfected and enforceable by the Escrow Agent against the Company and all third parties in accordance with the terms of this Escrow Agreement.
(d) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Company, as to any matter relating to this Escrow Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
(e) The Escrow Agent shall 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 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, war, or terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(f) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e4) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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.
(i5) The Escrow Agent shall not be under any duty to give the Escrow 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 in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(and any successor escrow agent6) may at At any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged may request an instruction in writing in English from the Company and may, at its own option, include in such request the course of action it proposes to take and from the date on which it proposes to act, regarding any and all further obligations matter arising in connection with this Agreementits duties and obligations hereunder. The resignation of the Escrow Agent will take effect shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (the "Resignation Date"3) which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 business days after the date Company receives the Escrow Agent's request for instructions and its proposed course of delivery of its written notice of resignation action, and provided further that, prior to the other parties hereto. Upon the appointment of a successor escrow agentso acting, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation the written instructions requested.
(7) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of a successor escrow agentsecurities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent's sole responsibility after , absent gross negligence, shall not be responsible or liable in the Resignation Date event such communication is not an authorized or authentic communication of the Company or is not in the form the Company sent or intended to send (whether due to fraud, distortion or otherwise). The Company shall be to safekeep indemnify the Escrowed Property Escrow Agent against any loss, liability, claim or expense (including legal fees and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoexpenses) it may incur with its acting in accordance with any such communication.
(ja) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Company, which eliminates such ambiguity or uncertainty.
(b) In the event of any dispute between or conflicting claims among the Company and any other person or entity with respect to any Escrow Property, 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 such other person or entity for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to 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 satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Escrow Agent shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys' fees and expenses) incurred in connection with such proceeding shall be paid by the Company.
(c) 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 conclusively rely without any liability upon the contents thereof.
(k9) In the event of The Escrow Agent does not have any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or interest in the event that Escrow Property deposited hereunder but is serving as escrow holder only and 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 good faith is in doubt as to what action it should take hereunder, connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from this Escrow Account shall be entitled subject to retain the Escrowed Property and Interest, if any, until withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with an appropriate W-9 form for tax identification number certification. This paragraph shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by survive notwithstanding any termination of this Escrow Agreement or the opinion of counsel referred to in Section 3(b)) directing delivery resignation or removal of the Escrowed Property and Interest, if any, or Escrow Agent.
(ii10) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on provide to the Company monthly statements identifying transactions, transfers or holdings of Escrow Property and each such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services statement shall be deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 Company unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize is notified in writing, by the Escrow Agent, for any securities held hereunderCompany, to use the services contrary within thirty (30) business days of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and date of the Federal Reserve Book Entry SystemCompany's receipt of such statement.
Appears in 1 contract
Sources: Escrow Agreement (Motient Corp)
The Escrow Agent. To induce the (2) The Escrow Agent may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to act hereunder, it is further agreed hereunder and reasonably believed by it to be genuine and to have been signed or presented by the Buyer and the Seller that:proper party or parties.
(a3) The Escrow Agent shall not be under liable for any duty action taken by it in good faith and reasonably believed by it to give be authorized or within the Escrowed Property held rights or powers conferred upon it by this Escrow Agreement, and may consult with counsel of its own choice 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.
(4) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any greater degree party hereto which, in its opinion, conflict with any of care than the provisions of this Escrow Agreement, it gives shall be entitled to refrain from taking any action and its own similar sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by all of the other parties hereto or by a final order or judgment of a court of competent jurisdiction.
(5) The Escrow Agent may resign and be discharged from its duties or obligations hereunder by giving notice in writing of such resignation specifying a date upon which such resignation shall take effect, which date shall not be required less than sixty (60) days prior to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder the date such notice is given and provided that such resignation shall not earn or accrue interesttake effect until a successor Escrow Agent shall have been appointed jointly by Hubb▇▇▇ ▇▇▇ the Shareholder Representative.
(b6) 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 agreement among the other parties hereto except this Escrow Agreement and shall not be deemed to have knowledge of nor responsibility under the terms of the Merger Agreement.
(c) . The Escrow Agent shall not be liableunder no duty to inquire into or investigate the validity, except for its own gross negligence accuracy or willful misconduct andcontent of any such document.
(7) Hubb▇▇▇ ▇▇▇ the Shareholder Representative (on behalf of the Shareholders) hereby agree, except with respect jointly and severally, to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all costs, losses, claims, damages, liabilities, claims, actions, damages, and expenses, including reasonable costs of investigation, court costs, and attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, which may be imposed upon the Escrow Agent shall in no event be liable in connection with its investment or reinvestment acceptance of any cash held by it hereunder in good faith, in accordance with the terms hereofappointment as Escrow Agent hereunder, including without limitation, any liability for any delays (not resulting litigation arising from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or involving the resignation subject matter hereof, except in the case of the Escrow Agent.
(d) The 's own willful default or gross negligence; 50% of any such amount shall be payable by Hubb▇▇▇ ▇▇▇ 50% shall be payable by the Shareholder Representative on behalf of the Shareholders. Anything in this agreement to the contrary notwithstanding, in no event shall 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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for special, indirect or consequential loss or damage of any action taken or omitted in good faith in accordance with such advice.
kind whatsoever (f) The Escrow Agent does including but not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse limited to lost profits), even if the Escrow Agent upon request for one-half has been advised of any transfer taxes the likelihood of such loss or other taxes relating to damage and regardless of the Escrowed Property incurred in connection herewith and form of action; provided, however, that this sentence 8 8 shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay not apply in the way case of such taxes. Any payments of income from gross negligence or bad faith on the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation part of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Escrow Agreement (Hubbell Inc)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent may rely and shall not be under protected in acting or refraining from acting upon any duty to give the Escrowed Property held resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, or other paper or document believed by it hereunder any greater degree of care than it gives its own similar property to be genuine and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn have been signed or accrue interestpresented by the proper party or parties.
(b) This Agreement expressly sets forth all the duties Any request, direction, order or demand of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against sufficiently evidenced by an instrument signed in the Escrow Agent. The Escrow name of Agent shall not by one who purports to be bound by the provisions of any agreement among the other parties hereto except this Agreementan officer thereof.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except may consult with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer counsel and the Seller shall, severally advice of such counsel or any opinion of counsel shall be full and not jointly, indemnify complete authorization and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half protection in respect of any and all lossesaction taken, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment suffered or reinvestment of any cash held omitted by it hereunder in good faith, faith and in accordance with the terms hereof, including without limitation, any liability for any delays (not resulting from its gross negligence such advice or willful misconduct) in the investment or reinvestment opinion of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agentcounsel.
(d) The Escrow Agent shall be entitled under no obligation to rely assist Agent in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness exercise of any fact stated of the rights or powers vested in it pursuant to Section 8 hereof under circumstances which, in the reasonable judgment of the Escrow Agent, may subject the Escrow Agent to pecuniary liability unless Agent shall have offered to the Escrow Agent reasonable security or indemnity against the costs, expenses and liabilities which might be incurred therein or the propriety or validity of the service thereofthereby. The Escrow Pledgor agrees to promptly reimburse Agent may act in reliance upon any instrument for all reasonable costs, fees, expenses or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document liabilities incurred in connection with the provisions hereof has been duly authorized to do soproviding any such security or indemnity.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted by it in good faith in accordance with such adviceand believed by it to be authorized or within the discretion or rights or powers conferred upon it pursuant hereto.
(f) The Escrow Agent does not have may perform any interest in the Escrowed Property deposited duties hereunder but is serving as escrow holder only either directly or by or through agents or attorneys, and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall not be responsible for income reporting only any misconduct or negligence on the part of any agent or attorney appointed with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agentdue care by it hereunder.
(g) The Escrow Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, advice, opinion, report, notice, request, direction, consent, order, bond, or other paper or document, but the Escrow Agent, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.
(h) The Escrow Agent makes no representation as to the validity, value, genuineness validity or sufficiency of this Agreement or the collectability of any security Collateral or other 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 or taking or refraining from any action with respect to any securities or other property deposited hereunderotherwise.
(i) The Escrow Agent in its individual or any capacity, may become the owner or pledgee of Bonds and may otherwise engage in transactions with, and collect obligations owing to it by, the Pledgor with the same rights it would have if it were not Escrow Agent.
(j) The Pledgor covenants to indemnify the Escrow Agent for, and to hold it harmless against, any successor escrow agentloss, liability or expense incurred without gross negligence or willful misconduct on the part of the Escrow Agent arising out of or in connection with the acceptance of administration of this Agreement and its duties hereunder, including the costs and expenses of defending itself against any claim of liability in the premises (except any liability incurred with gross negligence or willful misconduct on the part of the Escrow Agent). The obligations of the Pledgor hereunder shall survive payment of the Bonds and termination of the Agreement and shall be entitled to a prior lien on the Collateral.
(k) may at It is understood and agreed that should any time resign as dispute arise with respect to the payment and/or ownership or right of possession of the Collateral, the Escrow Agent is authorized and directed to retain in its possession, without liability to anyone, all or any part of said Collateral until such dispute shall have been settled either by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated mutual agreement by the Buyer and parties concerned or by the Seller in writing final order, decree or to any judgment of a court or other tribunal of competent jurisdictionjurisdiction in the United States of America and time for appeal has expired and no appeal has been perfected, whereupon but the Escrow Agent shall be discharged under no duty whatsoever to institute or defend any such proceedings.
(l) The Escrow Agent may resign at any time by giving written notice thereof to other parties hereto, but such resignation shall not become effective until a successor Escrow Agent shall have been appointed and shall have accepted such appointment in writing. If an instrument of and from any and all further obligations arising in connection with this Agreement. The resignation of acceptance by a successor Escrow Agent shall not have been delivered to the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is within 30 days after the date giving of delivery of its written such notice of resignation to resignation, the other parties hereto. Upon resigning Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor escrow agent, such . Any successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for promptly notify the contents of any writing of 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 Buyer Trustee and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties succession hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided address for herein may be taken from any property held by the Escrow Agent hereunderpurposes hereof.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under promptly distribute all or any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties part of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and Shares in connection accordance with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any party person or entity as to the wisdom in selling or retaining or taking or refraining from any action investments with respect to any securities security, property or funds held in escrow hereunder or the dividends, distributions, income, interest or earnings thereon. The Escrow Agent shall act hereunder as an escrow agent only and shall not be responsible or liable in any matter whatever for the sufficiency, collection, correctness, genuineness or validity of any revenues, cash, payments, securities, property, funds, investments, income, earnings or other property amounts deposited hereunderwith 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.
(ib) The Escrow Agent (reasonable fees and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation expenses of the Escrow Agent will take effect in connection with its preparation, negotiation, amendment, modification, waiver, execution, delivery, performance and enforcement of this Agreement as set forth on SCHEDULE 5 hereto shall be borne by Genmar which amount shall be due and payable upon the signing of this Agreement and on the date (first day of each subsequent year during which this Agreement remains in effect. The Escrow Agent shall not be liable for any error of judgment or for any act taken or suffered or omission to act under this Agreement, including any and all claims made against the "Resignation Date") which is Escrow Agent as a result of its holding the earlier to occur of: (i) the date Escrow Shares in its own name, except for its own gross negligence or willful misconduct, each as determined by a successor is appointed (including final non-appealable order, judgment, decree or ruling of a court of competent jurisdiction. In no event shall the Escrow Agent be liable or responsible for special, punitive, indirect, consequential or incidental loss or damages of any kind whatsoever to any person or entity (including without limitation lost profits), 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 will be limited to the amounts of fees paid to the Escrow Agent. The Partnerships and Genmar, jointly and severally, agree to indemnify and hold harmless from and against any and all claims, losses, costs, liabilities, damages, penalties, settlements, actions, proceedings, suits, litigation, investigations, demands, judgments or expenses (including but not limited to reasonable attorney's fees) claimed against or incurred by the Escrow Agent arising out of or related, directly or indirectly, to this Agreement, except acts of gross negligence or willful misconduct, each as determined by a final non-appealable order, judgment, decree or ruling of a court of competent jurisdiction. The Escrow Agent shall 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 reasonably satisfactory to it.
(iic) The Escrow Agent may act in reliance upon any instructions, direction, request or other communication or instrument with a signature believed by it to be genuine and may assume that any person who has been designated by Genmar or a Recipient or otherwise pursuant hereto to give any written instructions, notice or receipt, or make any statements in connection with the date provisions hereof, has been duly authorized to do so. The Escrow Agent shall have no duty to make inquiry as to the genuineness, accuracy or validity of any statements or instructions or any signatures on statements or instructions. The name and true signatures of each individual authorized to act on behalf of Genmar and each Recipient are stated in SCHEDULE 4 as to Genmar and on the signature pages hereto as to each Recipient. The Escrow Agent's duties shall be determined only with reference to those which are expressly set forth in this Agreement (and no implied duties), and the Escrow Agent is 30 days after not charged with knowledge of or any duties or responsibilities in connection with any other document or agreement. In the date event the Escrow Agent determines in good faith any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Escrow Agent hereunder, Escrow Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to any Party or any other person or entity for refraining from taking such action, unless the Escrow Agent receives written instructions signed by the relevant Parties which eliminates such ambiguity or uncertainty to the satisfaction of delivery Escrow Agent. The Escrow Agent may consult with and obtain advice from counsel (who may be counsel to a Party or an employee of its the Escrow Agent) and shall be fully protected in taking, suffering or omitting to take any action in reliance on said advice. Without limiting the foregoing, the Escrow Agent shall not be subject to, nor be required to comply with, or determine if any person or entity has complied with, the Plan of Recapitalization or any other agreement between or among the Parties, even though reference thereto may be made in this Escrow Agreement, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Escrow Agreement.
(d) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the Parties, at the addresses set forth herein or at such other parties heretoaddress as the Parties shall provide, at least thirty (30) days prior to the date specified for such resignation to take effect. Upon In such event Genmar shall appoint a successor escrow agent, which shall be a bank or trust company reasonably acceptable to OCM Principal Opportunities Fund, L.P. and Genmar Alexandra, LLC (the "Minimum Recipients"), within said thirty (30) days; if Genmar does not designate a successor escrow agent within such period, the Minimum Recipients may appoint a bank or trust company reasonably acceptable to Genmar as a successor escrow agent, provided that they did not unreasonably withhold their consent to the appointment of a successor escrow agentagent by Genmar pursuant to this Section 5(d). Upon the effective date of such resignation, such successor escrow agent the Escrow Shares together with all cash and other property then held by the Escrow Agent hereunder shall deliver written notice be delivered by it to the Buyer and the Seller on the appointment of such successor escrow agent. If at In the Resignation Date event a successor escrow agent is not appointed within said thirty (30) days, the Escrow Shares and all cash and other property held by the Escrow Agent has not received shall be delivered to and deposited with a designation court of competent jurisdiction to act as successor escrow agent. Upon the delivery of the Escrow Shares pursuant to this Section 5(d) to a successor escrow agent, the Escrow Agent shall be relieved of all liability hereunder, except for any liability arising out of the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interestgross negligence or willful misconduct, if anyeach as determined by a final non-appealable order, until receipt judgment, decree or ruling of a designation court of successor escrow agent or a joint written disposition instruction by the other parties heretocompetent jurisdiction.
(je) The Escrow Agent shall have no responsibility for the contents of may engage or be interested in any writing of financial or other transaction with any third party contemplated herein as a means to resolve disputes hereto or affiliate thereof, and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if anyact on, or in the event that 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 in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination not incur any liability for not performing any act, duty, obligation or agreement without further question.
(l) The compensation responsibility by reason of any occurrence beyond the control of the Escrow Agent (as payment in fullincluding 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).
(f) for the services to be rendered by the The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by or through its agents or attorneys. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, inquire into or pass upon the amount of $2,500 for the initial year paid by the Buyer at the time of validity, binding effect, execution or sufficiency of this Agreement or of any amendment or supplement hereto.
(g) The provisions of this Section 5 shall survive the termination of this Escrow Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred the resignation or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses removal of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunderAgent.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Company or BD is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Company or BD or an entity acting on its behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among of its duties hereunder.
(b) 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 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 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, Escrow Agent shall not be liable to any of the parties hereto except this Agreementor 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.
(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 or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Company and BD or any successor escrow agententity acting on behalf of the Company or BD (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, (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, or (iv) for an amount in excess of the value of the Escrow Property, valued as of the date of deposit, but only to the extent of direct money damages.
(d) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property
(e) As security for the due and against one-half punctual performance of any and all lossesof the Company’s and BD’s obligations to the Escrow Agent hereunder, liabilitiesnow or hereafter arising, claimsthe Company and BD hereby pledges, actions, damagesassigns and grants to the Escrow Agent a continuing security interest in, and expensesa lien on, including reasonable attorneys' fees and disbursements, arising out the Escrow Property. The security interest of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event at all times be liable in connection with its investment or reinvestment of any cash held valid, perfected and enforceable by it hereunder in good faith, the Escrow Agent against the Company and BD and all third parties in accordance with the terms hereof, including without limitation, of this Agreement.
(f) The Escrow Agent shall not incur any liability for not performing any delays (not resulting from its gross negligence act or willful misconduct) in fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation control of the Escrow AgentAgent (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, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(dg) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eh) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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 shall not be under any duty to give the Escrow 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. Uninvested funds held hereunder shall not earn or accrue interest.
(j) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Company or BD or is not in the form the Company and BD sent or intended to send (whether due to fraud, distortion or otherwise). The Company and BD shall indemnify the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may incur with its acting in accordance with any such communication.
(k) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Company and BD which eliminates such ambiguity or uncertainty.
(l) In the event of any dispute between or conflicting claims among the Company and BD and any successor escrow agent) may at other person or entity with respect to any time resign Escrow Property, 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 by delivering the Escrowed Property and Interestdispute or conflict shall continue, if any, to any successor escrow agent jointly designated by the Buyer and the Seller Escrow Agent shall not be or become liable in writing any way to the Company and BD for failure or refusal to any comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to 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, whereupon which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall be discharged of have received security or an indemnity satisfactory to it sufficient to hold it harmless from and from against any and all further obligations arising in connection with this Agreementlosses which it may incur by reason of so acting. The resignation Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the Escrow Agent will take effect on rights of the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including parties by a court of competent jurisdiction) , and that the time for appeal from such order, judgment or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties heretodecree has expired without an appeal having been filed with such court. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the The Escrow Agent has not received shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed a designation of a successor escrow agentjoint and several obligation of, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property Company and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.BD
(jm) 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 conclusively rely without any liability upon the contents thereof.
(kn) In The Escrow Agent does not have any interest in the event of Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Company and BD shall pay or reimburse the Escrow Agent upon request for any disagreement between transfer taxes or other taxes relating to the Buyer and the Seller resulting in adverse claims or demands being made 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 way of such taxes. Any payments of income from this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Company and BD will provide the Escrowed Property and InterestEscrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. It is understood that the Escrow Agent shall only be responsible for income reporting with respect to income earned on the Escrow Property, if any, and will not be responsible for any other reporting. This paragraph shall survive notwithstanding any termination of this Agreement or in the event that resignation or removal of 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received Agent.
(io) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on provide to the Company and BD monthly statements identifying transactions, transfers or holdings of Escrow Property and each such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services statement shall be deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement Company and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 BD unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize is notified in writing, by the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and BD to the Federal Reserve Book Entry Systemcontrary within thirty (30) business days of the date of such statement.
Appears in 1 contract
Sources: Master Escrow Agreement (Emerging Fuels Technology, Inc.)
The Escrow Agent. To induce 4.1 In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent to will act hereunderhonestly and in good faith and will exercise that degree of care, it is further agreed by the Buyer diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
4.2 The Company and the Seller that:Investor jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent’s compliance in good faith with the terms hereof.
(a) 4.3 In case proceedings should hereafter be taken in any court respecting the Shares and Warrants, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security against its costs of such proceedings.
4.4 The Escrow Agent shall not be under any will have no responsibility in respect of loss of the Shares and Warrants except the duty to give exercise such care in the Escrowed Property held by safekeeping thereof as it hereunder any greater degree of care than it gives its own similar property would exercise if the Shares and shall not be required Warrants belonged to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel.
4.5 The Escrow Agent will not be bound in any way by any contract between the provisions of any agreement among the other parties hereto except this Agreementwhether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Shares and Warrants as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth.
(c) The 4.6 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall not be liablesufficient if any writing purporting to be such a notice, except for demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its own gross negligence attention.
4.7 In the event that the Shares and Warrants are attached, garnished or willful misconduct andlevied upon under any court order, except with respect to claims based upon or if the delivery of such gross negligence property is stayed or willful misconduct that are successfully asserted against enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Buyer Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the Seller shall, severally and not jointly, indemnify and hold harmless contrary. If the Escrow Agent (obeys and complies with any successor escrow agent) from and against one-half such writs, order, judgment or decrees it will not be liable to any of the parties hereto or to any and all lossesother person, liabilitiesfirm or corporation by reason of such D/BIP/676666.1 compliance, claimsnotwithstanding that such writs, actionsorders, damagesjudgments or decrees may be subsequently reversed, and expensesmodified, including reasonable attorneys' fees and disbursementsannulled, arising out of and in connection with this Agreement. Without limiting the foregoingset aside or vacated.
4.8 Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in case of such compliance, it shall in no event not be liable in connection with its investment or reinvestment of by reason thereof to any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property parties hereto or any loss of interest incident to any other person, firm, association or corporation, even if thereafter any such delaysorder, judgment or decree may be reversed, modified, annulled, set aside or vacated.
4.9 If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Shares and Warrants until the lawful determination of the issue between the parties hereto.
4.10 If protest is made to any action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may continue to hold the Shares and Warrants until the right to the Shares and Warrants is legally determined by a court of competent jurisdiction or otherwise.
4.11 The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days’ written notice thereof to each of the Company or the Investor. This Section 5(cThe Company and the Investor may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) shall days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Company and the Investor may agree upon. All indemnities granted to the Escrow Agent will survive notwithstanding any the termination of this Agreement or the resignation or termination of the Escrow Agent.
(d) The Escrow Agent shall be entitled 4.12 Notwithstanding anything herein to rely in good faith upon any orderthe contrary, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed written instructions given by it in good faith to be genuine the Company and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do soInvestor jointly.
(e) The 4.13 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Company and the Investor or between any other persons or between any of them with respect to this Agreement or any matters arising thereto, or with respect to the Shares and Warrants, the Escrow Agent may act pursuant in its sole discretion deliver and interplead the Shares and Warrants into court and such delivery and interpleading will be an effective discharge to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not have no duties or obligations hereunder except those specifically set forth herein and such duties and obligations shall be determined solely by the express provisions of this Agreement and no duties shall be implied. The Escrow Agent shall have no liability under any and no duty to give inquire as to the Escrowed Property held provisions of any agreement other than this Agreement. In connection with its duties hereunder, the Escrow Agent shall be protected in acting or refraining from acting upon any written notice, request, consent, certificate, order, affidavit, letter, telegram or other document furnished to it hereunder and reasonably believed by it hereunder any greater degree of care than it gives its own similar property to be genuine and to have been signed or sent by the proper party or parties, and the Escrow Agent shall not be required liable for anything it may do or refrain from doing in connection with its duties hereunder, except to invest the extent that a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any Escrowed Property held loss to the parties. In the administration of the Escrow Account, the Escrow Agent may execute any of its powers and perform its duties hereunder except as directed in this Agreement. Uninvested funds held hereunder directly or through agents or attorneys (and shall not earn be liable only for the careful selection of any such agent or accrue interestattorney) and may consult with counsel, accountants and other skilled persons to be selected and retained by it.
(b) This In the event the Escrow Agent shall be uncertain as to its duties or rights under this Agreement expressly sets forth all or shall receive any instruction, claim or demand that, in the duties opinion of the Escrow Agent, is in conflict with the provisions of this Agreement (any of the foregoing, an “Escrow Agent Dispute”), the Escrow Agent shall be entitled to refrain from taking any action with respect to such Escrow Agent Dispute and its sole obligation shall be to keep safely all property held under the terms of this Agreement until it shall be directed otherwise by a final and nonappealable order of a court of competent jurisdiction or by an instrument signed by both Parties. In the event of any Escrow Agent Dispute, the Escrow Agent shall be entitled to petition a court of competent jurisdiction in the State of Delaware to resolve such Escrow Agent Dispute, and each of the Parties consent to the jurisdiction of any such court with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The such Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this AgreementDispute.
(c) The Escrow Agent shall not be liable, except reimbursed for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer all reasonable fees and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against oneout-half of any and all losses, liabilities, claims, actions, damages, and pocket expenses, including without limitation those fees set forth on Schedule IV hereto and reasonable attorneys' outside counsel fees and other out-of-pocket disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in connection with the performance of its duties hereunder and obligations under this Agreement (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.all
Appears in 1 contract
Sources: Merger Agreement (Perrigo Co)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not be under any duty to give the 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 Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(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 in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document 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 Agreement and 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 or willful misconduct on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or relying upon (and shall be fully protected in relying upon) any instruction, notice, demand, certificate or document from the Depositor, any entity acting on behalf of the Depositor or any other person or entity which it reasonably believes to be genuine, (ii) for any indirect, consequential, punitive or special damages, even if advised of the possibility thereof, (iii) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians selected by it in good faith, or (iv) for an amount in excess of the value of the Escrow Property.
(b) As security for the due and punctual performance of any and all of the Depositor’s obligations to the Escrow Agent hereunder, now or hereafter arising, the Depositor, hereby pledges, assigns and grants to the Escrow Agent a continuing security interest in, and a lien on and right of setoff against, the Escrow Property and all Distributions thereon, investments thereof or additions thereto (whether such additions are the result of deposits by Depositor or the investment of Escrow Property or otherwise). If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent hereunder are not promptly paid when due, the Escrow Agent may reimburse itself therefor from the Escrow Property, and may sell, convey or otherwise dispose of any Escrow Property for such purpose. The security interest and setoff rights of the Escrow Agent shall at all times be valid, perfected and enforceable by the Escrow Agent against the Depositor and all third parties in accordance with the terms of this Escrow Agreement.
(c) The Escrow Agent may at the expense of the Depositor, consult with legal counsel as to any matter relating to this Escrow Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such advicecounsel.
(fd) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller In no event shall each pay or reimburse the Escrow Agent upon request be responsible or liable for one-half of any transfer taxes failure or other taxes relating to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay delay in the way performance of such taxes. Any payments its obligations hereunder arising out of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Escrow Agent shall be responsible for income reporting only use reasonable efforts which are consistent with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or accepted practices in the event that banking industry to resume performance as soon as practicable under 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 Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further questioncircumstances.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Escrow Agreement (Aon Corp)
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Parties are a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from the Parties or an entity acting on their behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among of its duties hereunder.
(b) 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 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 or legal counsel of its own choosing deems appropriate, provided that the Escrow Agent acts in good faith and gives reasonable notice thereof to the Parties; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, Escrow Agent shall not be liable to any of the parties hereto except this Agreementor 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.
(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 in the absence of fraud, except for its own gross negligence or willful misconduct andon its part provided that such actions or ommissions are in good faith and consistent with the terms of this Agreement. In the absence of fraud, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against misconduct, in no event shall the Escrow Agent be liable under this Agreement (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from Parent and Buyer or any entity acting on behalf of the Parties, (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, (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians in the administration of the Escrow Agent’s duties hereunder, (iv) for the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation, limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property Escrow Property, or any loss of interest or income incident to any such delays. This Section 5(c, or (iv) shall survive notwithstanding any termination for an amount in excess of this Agreement or the resignation value of the Escrow AgentProperty, valued as of the date of deposit, but only to the extent of direct money damages.
(d) Upon five (5) business day’s written notice to Parent and Buyer, the Escrow Agent may consult with legal counsel of its own choosing, at the expense of Parent and Buyer, as to any matter relating to this Escrow Agreement and the Escrow Agent shall not incur any liability for taking any action, that is consistent with its duties, obligations or responsibities hereunder, in good faith in accordance with any advice from such counsel.
(e) The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
(f) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document 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 Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to shall not be responsible in any respect for the form, execution, validity, valuevalue or genuineness of documents or securities deposited hereunder, genuineness or for any description therein, or for the collectability identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such document, security or other document 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.
(ih) The Escrow Agent shall not be under any duty to give the Escrow 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 in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(and i) At any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interesttime, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged may request an instruction in writing in English from Parent and Buyer and may, at its own option, include in such request the course of action it proposes to take and from the date on which it proposes to act, regarding any and all further obligations matter arising in connection with this Agreementits duties and obligations hereunder. The resignation of the Escrow Agent will take effect shall not be liable for acting in accordance with such a proposal on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date specified therein, provided that the specified date shall be at least five (5) business days after Parent and Buyer receive the Escrow Agent’s request for instructions and its proposed course of delivery of its written notice of resignation action, and provided further that, prior to the other parties hereto. Upon the appointment of a successor escrow agentso acting, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation the written instructions requested.
(j) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of a successor escrow agentsecurities or the wire transfer of funds) sent by both Parent and Buyer by means of telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent's sole responsibility after , absent fraud, willful misconduct or gross negligence, shall not be responsible or liable in the Resignation Date event such communication is not an authorized or authentic communication of the Parties or is not in the form Parent and Buyer sent or intended to send (whether due to fraud, distortion or otherwise). Parent and Buyer shall be to safekeep indemnify the Escrowed Property Escrow Agent against any loss, liability, claim or customary expense (including legal fees and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoexpenses) it may incur with its acting in accordance with any such communication.
(jk) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, after providing notice to Parent and Buyer, in its reasonable discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by Parent and Buyer, which eliminates such ambiguity or uncertainty.
(l) In the event of any dispute between or conflicting claims among Parent and Buyer and any other person or entity with respect to any Escrow Property, the Escrow Agent shall be entitled, in its reasonable 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 Parent or Buyer for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until, in its reasonable 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 satisfactory to the Escrow Agent or (ii) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Escrow Agent shall act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its reasonable discretion, necessary. The customary costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed a joint and several obligation of, the Parent and Buyer.
(m) 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 conclusively rely without any liability upon the contents thereof.
(kn) In the event of The Escrow Agent does not have any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or interest in the event that Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. Buyer shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrow Property incurred in good faith connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in doubt as the way of such taxes. Parent and Buyer will each provide the Escrow Agent with a properly completed Internal Revenue Service (“IRS”) form W-9 for tax identification number certification, or IRS form W-8 for foreign person certification. If such tax reporting documentation is not provided to what action it should take hereunderthe Escrow Agent, the Escrow Agent may be required to withhold a portion of any interest or other income earned on the investment of the Escrow Property. This paragraph shall survive notwithstanding any termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(o) If requested by Parent or Buyer, the Escrow Agent shall be entitled provide to retain such party monthly statements identifying the Escrowed Property and Interest, if any, until the holdings of Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further questionProperty.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (CAESARS ENTERTAINMENT Corp)
The Escrow Agent. To induce Section A. Concerning the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:Agent. ---------------------------
(a) The duties of the Escrow Agent are only such as are herein specifically provided, and the Escrow Agent shall not be under any duty to give the Escrowed Property held by liable for anything it hereunder any greater degree of care than it gives may do or refrain from doing in connection with its own similar property and shall not be required to invest any Escrowed Property held duties hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn a result of its gross negligence, willful misconduct or accrue interestbad faith.
(b) This 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 Agreement against the Escrow Agent. The Escrow Agent shall not be bound reimbursed by the provisions Company for its fees (more specifically set forth on Exhibit A hereto) and any out-of-pocket expenses (including counsel fees) reasonably incurred by it in connection with the performance of any agreement among the other parties hereto except its duties and obligations under this Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against Each of the Escrow Agent, the Buyer Company and the Seller shall, severally and not jointly, Beneficiaries hereby agree to indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damagesfor, and expensesto hold it harmless against, including reasonable attorneys' fees and disbursementsany loss, liability or expense incurred without gross negligence, willful misconduct or bad faith on its part, arising out of and or in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment performance of any cash held by it hereunder in good faithof its powers or duties hereunder, in accordance with the terms hereofincluding, including without limitation, the costs and expenses of defending itself against any claim or liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agentconnection therewith.
(d) The Escrow Agent shall be entitled to rely upon and to act and refrain from acting in good faith reliance upon any written notice, request, consent, certificate, order, judgmentaffidavit, certificationletter, demand, notice, instrument telegram or other writing delivered document furnished to it hereunder in accordance with and believed by it to be genuine and to have been signed or sent by the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofproper party. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection consult 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 Agreement and shall not be liable for any action taken anything it may do or omitted in good faith refrain from doing in accordance with the written opinion and instructions of counsel. Copies of all such adviceopinions shall be made available to the other parties hereto upon request.
(e) Any amounts to be paid by the Escrow Agent to the Beneficiary or the Company hereunder shall be paid in cash, by wire transfer or by cashier's or certified check or by any check drawn by the Escrow Agent.
(f) The Escrow Agent does shall make payment to or for, or deliver documents to, any party only if in its judgment such payment or delivery may be made under the terms of this Agreement without its incurring any liability. If conflicting demands not have any interest expressly provided for in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay this Agreement are made or reimburse notices served upon the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood its action or omission under this Agreement, the parties hereto agree that the Escrow Agent shall be responsible for income reporting only with respect have the right to income earned on investment elect to do either or both of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other 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 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 Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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 Agreement. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur offollowing: (i) the date a successor is appointed (including a court of competent jurisdiction) withhold and stop all future actions or omissions on its part under this Agreement; or (ii) file a suit in interpleader or for instructions or for a declaratory judgment for other relief and obtain an order from the date which is 30 days after proper court requiring the date of delivery of its written notice of resignation parties to the other parties heretolitigate in such court their conflicting claims and demands. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of 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 Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or in the event that the Escrow Agent in good faith such action is in doubt as to what action it should take hereundertaken, the Escrow Agent shall be entitled fully released and discharged from all obligations to retain perform any duties or obligations imposed upon it by this Agreement unless and until otherwise ordered by such court.
(g) In the Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent becomes involved in any litigation or dispute by reason hereof, it is hereby authorized to deposit with the clerk of a court of competent jurisdiction any and all funds or other property held by it pursuant hereto and, thereupon, shall disburse the Escrowed Property stand fully relieved and Interestdischarged of any further duties hereunder. Also, if anyby reason hereof, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment is hereby authorized to interplead all interested parties in full) for any court of competent jurisdiction and to deposit with the services to be rendered by the Escrow Agent hereunder shall be the amount clerk of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement such court any and $2,000 annually thereafterall funds, together with reimbursement for all reasonable expenses, disbursements and advances incurred securities or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any other property held by the Escrow Agent it pursuant hereto and, thereupon, shall stand fully relieved and discharged of any further duties hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
Appears in 1 contract
The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The Escrow Agent shall not have no duties or obligations hereunder except those specifically set forth herein and such duties and obligations shall be determined solely by the express provisions of this Agreement. The Escrow Agent shall have no liability under any and no duty to give inquire as to the Escrowed Property held provisions of any agreement other than this Escrow Agreement. In connection with its duties hereunder, the Escrow Agent shall be protected in acting or refraining from acting upon any written notice, request, consent, certificate, order, affidavit, letter, telegram or other document furnished to it hereunder and believed by it hereunder any greater degree of care than it gives its own similar property to be genuine and to have been signed or sent by the proper party or parties, and the Escrow Agent shall not be required to invest any Escrowed Property held hereunder liable for anything it may do or refrain from doing in connection with its duties hereunder, except for such liabilities as directed in this Agreementmay result from its own gross negligence or willful misconduct. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all In the duties administration of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against Account, the Escrow AgentAgent may execute any of its powers and perform its duties hereunder directly or through agents or attorneys and may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be bound liable for the performance of agents selected by it with reasonable care or for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons.
(b) In the event the Escrow Agent shall be uncertain as to its duties or rights under this Agreement or shall receive any instruction, claim or demand that, in the opinion of the Escrow Agent, is in conflict with the provisions of this Agreement (any agreement among of the other parties hereto except this Agreementforegoing, an “Escrow Agent Dispute”), the Escrow Agent shall be entitled to refrain from taking any action with respect to such Escrow Agent Dispute until it shall be directed otherwise by a final and nonappealable order of a court of competent jurisdiction or by an instrument signed by all of the Escrow Parties. In the event of any Escrow Agent Dispute, the Escrow Agent shall be entitled to petition a court of competent jurisdiction in the County of New York, State of New York to resolve such Escrow Agent Dispute, and each of the Escrow Parties consent to the jurisdiction of any such court with respect to any such Escrow Agent Dispute.
(c) The Escrow Agent shall not be liablereimbursed for all reasonable fees and expenses, except including without limitation those fees set forth on Schedule IV hereto and reasonable counsel fees and disbursements, incurred by the Escrow Agent in connection with the performance of its duties and obligations under this Agreement. The Company shall be responsible for its own gross negligence or willful misconduct and, except with respect to claims based upon all such gross negligence or willful misconduct that are successfully asserted against reasonable fees and expenses. The Company shall be liable for the payment of all such fees and expenses incurred by the Escrow Agent, the Buyer except for such fees and the Seller shall, severally and not jointly, indemnify and hold harmless expenses incurred by the Escrow Agent due to (and i) the failure of an Escrow Party to comply with any successor escrow agentof its obligations hereunder or (ii) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, requirement by an Escrow Party that the Escrow Agent shall in no event be liable in connection with its investment or reinvestment perform duties outside the scope of any cash held by it hereunder in good faiththis Agreement, in accordance with the terms hereof, including without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) which fees and expenses set forth in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(cimmediately preceding clauses (i) and (ii) shall survive notwithstanding any termination of this Agreement or be paid by the resignation of the applicable Escrow AgentParty.
(d) The Escrow Agent may resign at any time by giving at least 30 days’ prior written notice to the Escrow Parties, which resignation shall be entitled to rely become effective upon the acceptance of appointment by the successor Escrow Agent as provided in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereofthis Section 6(d). The resigning Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The appoint a successor Escrow Agent may act pursuant Agent, reasonably acceptable to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereofParties. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) The If a successor Escrow Agent shall not be called upon to advise have been appointed within 20 days after such notice of resignation, any party as to of 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) Parties may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller in writing or apply to any court of competent jurisdictionjurisdiction to appoint a successor Escrow Agent. Notwithstanding the foregoing, whereupon the any successor Escrow Agent shall be discharged a financial institution organized under the laws of the United States of America and from any having a combined capital and all further obligations arising in connection surplus of not less than US $100,000,000. Any successor Escrow Agent, however appointed, shall execute and deliver to the predecessor Escrow Agent, with this Agreement. The resignation a copy to each of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agentParties, an instrument accepting such appointment, and thereupon such successor escrow agent shall deliver written notice to Escrow Agent shall, without further act, become fully vested with all the Buyer rights, powers, obligations and duties of the Seller on predecessor Escrow Agent hereunder with the appointment of such successor escrow agent. If at the Resignation Date same effect as if originally named the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(j) herein. The Escrow Agent shall have no responsibility for the contents of right to withhold an amount equal to any writing of amount due and owing to the Escrow Agent, plus any third party contemplated herein as a means to resolve disputes reasonable costs and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or in the event that expenses the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall reasonably believes may be entitled to retain the Escrowed Property and Interest, if any, until the Escrow Agent shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by the opinion of counsel referred to in Section 3(b)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance connection with termination of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunderthis Agreement.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 thereto.
(n) The other parties hereto authorize the Escrow Agent, for any securities held hereunder, to use the services of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry System.
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The Escrow Agent. To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and the Seller that:
(a) The duties, responsibilities and obligations of Escrow Agent shall not be under any duty limited to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property those expressly set forth herein and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties no duties, responsibilities or obligations shall be read into this Agreement inferred or implied against the Escrow Agent. The Escrow Agent shall not be bound by subject to, nor required to comply with, any other agreement to which the provisions Company or the Dealer Manager is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Company, the Dealer Manager or an entity acting on its behalf. The Escrow Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any agreement among of its duties hereunder.
(b) 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 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 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, Escrow Agent shall not be liable to any of the parties hereto except this Agreementor 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.
(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 or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless on its part. In no event shall the Escrow Agent be liable (and i) for acting in accordance with or conclusively relying upon any successor escrow agentinstruction, notice, demand, certificate or document from the Company, the Dealer Manager, or any entity acting on behalf of the Company, (ii) from and against one-half of for any and all lossesindirect, liabilitiesconsequential, claims, actions, punitive or special damages, and expensesmultiple damages under M.G.L. c. 93A or any other authority, including reasonable attorneys' damages for lost profits, damages for emotional distress, or attorney’s fees and disbursementscosts, arising out all regardless of the form of action and in connection with this Agreement. Without limiting whether or not any such damages were foreseeable or contemplated, (iii) for the foregoingacts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, (iv) for the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation, limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property Escrow Property, or any loss of interest or income incident to any such delays, or (v) for an amount in excess of the value of the Escrow Property, valued as of the date of deposit, but only to the extent of direct money damages. This Section 5(c) The provisions of this subsection shall survive notwithstanding any the termination of this Agreement or the earlier resignation or removal of the Escrow Agent.
(d) If any fees, expenses or costs incurred by, or any obligations owed to, the Escrow Agent or its counsel hereunder are not paid within fifteen (15) calendar days of when they are due, the Escrow Agent may reimburse itself therefore from the Escrow Property and may sell, liquidate, convey or otherwise dispose of any investment in respect of the Escrow Property for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of any interest earned in respect of the Escrow Property an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder.
(e) The Escrow Agent may consult with legal counsel of its own choosing, at the expense of the Company as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel. Reliance on such advice of counsel shall not effect or be deemed to be a waiver of the Escrow Agent’s attorney-client privilege or any other applicable privilege or protection.
(f) The Escrow Agent shall 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 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, civil unrest, local or national disturbance or disaster, any act of terrorism, the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility, or any computer or other technological malfunction).
(g) The Escrow Agent shall be entitled to conclusively rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of or the service thereof. The Escrow Agent may act in conclusive reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(eh) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any action taken description therein, or omitted in good faith in accordance with for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 way of such taxes. Any payments of income from the Escrow Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validitydocument, value, genuineness or the collectability of any security or other document 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 shall not be under any duty to give the Escrow 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 in this Agreement.
(j) When the Escrow Agent acts on any information, instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by telex, facsimile, email or other form of electronic or data transmission, the Escrow Agent, absent its own gross negligence, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Company or the Dealer Manager or is not in the form the Company or the Dealer Manager sent or intended to send (whether due to fraud, distortion or otherwise). The Company shall indemnify the Escrow Agent against any loss, liability, claim or expense (including legal fees and expenses) it may incur with its acting in accordance with any such communication.
(k) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than to retain possession of the Escrow Property, unless the Escrow Agent receives written instructions, signed by the Company which eliminates such ambiguity or uncertainty.
(l) In the event of any dispute between or conflicting claims among the Company and any successor escrow agent) may at other person or entity with respect to any time resign Escrow Property, 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 for so long as such by delivering dispute or conflict shall continue, and the Escrowed Property and InterestEscrow Agent shall not be or become liable in any way to the Company or any other person for failure or refusal to comply with such conflicting claims, if anydemands or instructions. The Escrow Agent shall be entitled to refuse to act until, to any successor escrow agent jointly designated its sole satisfaction, either (i) such conflicting or adverse claims or demands shall have been determined by the Buyer and the Seller in writing a final order, judgment or to any decree of a court of competent jurisdiction, whereupon which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent shall be discharged of have received security or an indemnity satisfactory to it sufficient to hold it harmless from and from against any and all further obligations arising in connection with this Agreementlosses which it may incur by reason of so acting. The resignation of Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Escrow Agent will take in its sole discretion, to the effect on that said order, judgment or decree represents a final adjudication of the date (rights of the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including parties by a court of competent jurisdiction) , and that the time for appeal from such order, judgment or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties heretodecree has expired without an appeal having been filed with such court. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such successor escrow agent. If at the Resignation Date the The Escrow Agent has not received a designation of a successor escrow agentmay act on such court order and legal opinions without further question. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed an obligation of, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties heretoCompany.
(jm) 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 conclusively rely without any liability upon the contents thereof.
(kn) In the event of The Escrow Agent does not have any disagreement between the Buyer and the Seller resulting in adverse claims or demands being made in connection with the Escrowed Property and Interest, if any, or interest in the event that Escrow Property deposited hereunder but is serving as escrow holder only and 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 good faith is in doubt as to what action it should take hereunder, connection herewith and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from this Escrow Account shall be entitled subject to retain withholding regulations then in force with respect to United States taxes. The Company or the Escrowed Property and Interest, if any, until Dealer Manager will provide the Escrow Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. This paragraph shall have received (i) a Final Determination (as defined in Section 3(b) and accompanied by survive notwithstanding any termination of this Agreement or the opinion of counsel referred to in Section 3(b)) directing delivery resignation or removal of the Escrowed Property and Interest, if any, or Escrow Agent.
(iio) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall disburse the Escrowed Property and Interest, if any, in accordance with such Final Determination or agreement. The Escrow Agent shall act on provide to the Company and the Dealer Manager monthly statements identifying transactions, transfers or holdings of Escrow Property and each such Final Determination or agreement without further question.
(l) The compensation of the Escrow Agent (as payment in full) for the services statement shall be deemed to be rendered correct and final upon receipt thereof by the Escrow Agent hereunder shall be Company and the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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). All fees and expenses of the Escrow Agent hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar 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 Dealer Manager unless the Escrow Agent shall first have given its specific written consent thereto.
(n) The other parties hereto authorize is notified in writing, by the Escrow Agent, for any securities held hereunderCompany or the Dealer Manager, to use the services contrary within thirty (30) business days of any United States central securities depository it deems appropriate, including, but not limited to, the Depository Trust Company and the Federal Reserve Book Entry Systemdate of such statement.
Appears in 1 contract
Sources: Subscription Escrow Agreement (American Realty Capital Trust, Inc.)