Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions: (a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel. (b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person. (c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder. (d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court. (e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement. (f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement. (g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder. (h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 2 contracts
Sources: Subscription Agreement (Renegade Venture Nev Corp), Subscription Agreement (Renegade Venture Nev Corp)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property Escrow Funds held by Escrow Agent it hereunder any greater degree of care than Escrow Agent it gives its own similar property; property and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for required to invest any action taken by Escrow Agent in good faith and believed by Escrow Agent funds held hereunder except as directed pursuant to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any Section 5 of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(fb) This Escrow Agreement expressly sets forth exclusively all the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 6(f) and Section 6(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute makes no representation as to the disposition validity, value, genuineness or the collectibility of the Company Documents and Subscriber Documents, in any security or other dispute between the Subscriber and Company which is unrelated documents or instrument held by or delivered to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderit.
(h) The provisions Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Section 4.1 shall survive the Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 6(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the termination rights, powers or duties of this Agreementthe Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Sources: Escrow Agreement (Canfield Medical Supply, Inc.), Escrow Agreement (Canfield Medical Supply, Inc.)
Concerning the Escrow Agent. 4.1To induce the Escrow Agent to act hereunder, it is further agreed by each of the Seller and FGC that:
(i) 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 funds held hereunder except as directed in this Agreement.
(ii) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. Duties and Responsibilities of No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent's duties and responsibilities Agent shall not be subject to bound by the following terms and conditions:provisions of any agreement among the other parties hereto except this Agreement.
(aiii) The Subscriber Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of any representations, warranties or covenants contained in this Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and Company acknowledge severally indemnify and agree that hold harmless the Escrow Agent (iand any successor Escrow Agent) shall not be responsible for or bound byfrom and against any and all losses, liabilities, claims, actions, damages, and shall not be required to inquire into whether either expenses, including reasonable attorneys' fees and disbursements, arising out of, and in connection with, this Agreement. Without limiting the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant toforegoing, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant 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 gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Funds, or any loss of interest incident to this Agreement; any such delays.
(iiiiv) may rely on and The Escrow Agent shall be protected in acting or refraining from acting entitled to rely upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume that act in reliance upon any person instrument or signature believed by the Escrow Agent it in good faith to be authorized genuine and may assume, if in good faith, 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 is so authorized; has been duly authorized to do so.
(v) shall not be under any duty to give the property held by The Escrow Agent hereunder may act pursuant to the advice of counsel with respect to any greater degree of care than matter relating to this Escrow Agent gives its own similar property; Agreement and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(vi) The Escrow Agent does not have any interest in the Escrowed Funds deposited hereunder, but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. This paragraph (vi) and paragraph (iii) of this Article V shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(vii) The Escrow Agent makes no representation as to the validity, value, genuineness, or the collectibility of any security or other documents or instrument held by, or delivered to, it.
(viii) 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.
(ix) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by FGC and the Seller or at any time may resign by giving written notice to such effect to FGC and the Seller. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (A) the appointment of a successor (including a court of competent jurisdiction) or (B) the day that is 30 days after the date of delivery: (1) to the Escrow Agent of the other parties' notice of termination or (2) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or an enforceable order of a court of competent jurisdiction.
(x) 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.
(xi) In the event of any disagreement among or between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (A) a final and believed non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (B) a written agreement executed by the other parties hereto directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (A) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber effect that said court order is final and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementnon-appealable. The Escrow Agent shall owe a duty only to the Subscriber act on such court order and Company under this Agreement and to no other personlegal opinions without further question.
(cxii) The Subscriber As consideration for its agreement to act as Escrow Agent as herein described, FGC shall pay the Escrow Agent fees determined in accordance with the terms set forth on Exhibit A hereto (and Company jointly made a part of this Escrow Agreement as if herein set forth). In addition, FGC and severally the Seller agree to reimburse the Escrow Agent for all reasonable outside counsel feesexpenses, to disbursements, and advances incurred or made by the extent authorized hereunder and incurred Escrow Agent in connection with the performance of its duties hereunder (including reasonable fees, expenses, and responsibilities hereunderdisbursements of its counsel) and to share equally the costs thereof.
(dxiii) The Escrow Agent may at No publicly distributed material or other matter in any time resign as Escrow Agent hereunder by giving five language (5including, without limitation, notices and reports) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to which mentions the Escrow Agent a Joint Instruction authorizing delivery of Agent's name or the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Companyrights, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agentpowers, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderfirst have given its specific written consent thereto.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 2 contracts
Sources: Indemnity Escrow Agreement (Family Golf Centers Inc), Escrow Agreement (Family Golf Centers Inc)
Concerning the Escrow Agent. 4.1. Duties 4.1 Each Interested Party acknowledges and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or bound bydescribed herein (including without limitation the Stock Purchase Agreement), or for determining or compelling compliance therewith, and shall not otherwise be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant tobound thereby, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are expressly and specifically assumed by set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent pursuant to this Agreement; Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person person, and shall have no responsibility or party, without being required duty to make inquiry as to or to determine the authenticity or correctness of any fact stated therein or the propriety genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the service thereof; (iv) may assume that any authority of the person believed by signing or presenting the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; same, and (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agentit, including in-house counsel, and the opinion or advice of such counsel to in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) 4.2 The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives anyone for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, it hereunder except in the case of the Escrow Agent’s gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under breach of the terms of this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent has been informed of the likelihood of such loss or damage and regardless of the form of action.
4.3 The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other person.
(c) The Subscriber and Company jointly and severally agree to reimburse subescrow agent employed by the Escrow Agent for reasonable outside counsel feesthan any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except to the extent authorized hereunder and incurred in connection with the performance that such action or omission of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder book-entry depository, securities intermediary or other subescrow agent was caused by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery Agent’s own gross negligence or willful misconduct in breach of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) 4.4 The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documentsis hereby authorized, in making or disposing of any other dispute between the Subscriber and Company which is unrelated to the Escrow investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or not the Escrow Agent such affiliate is then holding the Company Documents and Subscriber Documents and continues to act acting as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation a subagent of the Escrow Agent or for any third person or dealing as principal for its own account.
4.5 Notwithstanding any term appearing in this Agreement to the termination contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrowed Assets (or take other action that may be called for hereunder to be taken by the Escrow Agent) sooner than five (5) Business Days after (i) it has received the applicable documents required under this Agreement in good form, or (ii) passage of the applicable time period (or both, as applicable under the terms of this Agreement), as the case may be.
4.6 Unless and except to the extent otherwise expressly set forth herein, all deposits and payments hereunder, or pursuant to the terms hereof (including without limitation all payments to the Escrow Agent pursuant to Section 5), shall be in U.S. dollars.
Appears in 2 contracts
Sources: Stock Purchase Agreement (FusionStorm Global, Inc.), Stock Purchase Agreement (FusionStorm Global, Inc.)
Concerning the Escrow Agent. 4.1To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Duties Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and Responsibilities of all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent's duties and responsibilities Agent shall not be subject to bound by the following terms and conditions:provisions of any agreement among the other parties hereto except this Escrow Agreement.
(ac) The Subscriber 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, and Company acknowledge the other parties hereto shall jointly and agree that severally indemnify and hold harmless the Escrow Agent (iand any successor Escrow Agent) shall not be responsible for or bound byfrom and against any and all losses, liabilities, claims, actions, damages and shall not be required to inquire into whether either expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant toforegoing, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant 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 gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to this Agreement; any such delays.
(iiid) may rely on and The Escrow Agent shall be protected in acting or refraining from acting entitled to rely upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume that act in reliance upon any person instrument or signature believed by the Escrow Agent it in good faith to be authorized genuine and may assume, if in good faith, 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 is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counseldo so.
(be) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and that the Escrow Agent shall not be liable for any action taken by Escrow Agent or omitted in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other personaccordance with such advice.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(ef) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, Escrowed Property deposited hereunder but is serving only as escrow agent, having only possession thereofholder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of parties hereto will provide the Escrow Agent with respect to appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any and all matters pertinent thereto and no implied duties termination of this Escrow Agreement or obligations shall be read into this Agreementthe resignation of the Escrow Agent.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute makes no representation as to the disposition validity, value, genuineness or the collectibility of the Company Documents and Subscriber Documents, in any security or other dispute between the Subscriber and Company which is unrelated document or instrument held by or delivered to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderit.
(h) The provisions Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Section 4.1 shall survive the Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(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 among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above 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 court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the termination rights, powers, or duties of this Agreementthe Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 2 contracts
Sources: Placement Agency Agreement (Sciclone Pharmaceuticals Inc), Placement Agency Agreement (Integramed America Inc)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that fee of the Escrow Agent for its services provided hereunder shall be its customary fees for such services, payable on delivery of the escrow. The payment of all fees, disbursements, expenses and advances charged by the Escrow Agent shall be borne by the Purchaser except as set forth in Section 2(d) above.
(ib) The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving notice of such resignation to both the Stockholder and the Purchaser specifying a date not less than ten business days following the date of such notice when such resignation shall not take effect. Upon such notice, a successor escrow agent, which shall be responsible for or bound bya national bank, shall be selected by the Purchaser, subject to the reasonable approval of the Stockholder, such successor escrow agent to become the Escrow Agent hereunder upon the resignation date specified in such notice. If the Purchaser and the Stockholder are unable to agree upon a successor escrow agent within ten business days after the date of such notice, the Escrow Agent shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt appoint its successor, which shall be a national bank. The Escrow Agent shall continue to serve until its successor accepts the escrow and receives the Share Documents. The Purchaser, subject to the reasonable approval of the Company Documents and Subscriber Documents pursuant toStockholder, may at any other agreement or otherwise; (ii) time substitute a new Escrow Agent, which shall be obligated a national bank, by giving notice thereof to the Escrow Agent then acting.
(c) The Escrow Agent undertakes to perform only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) set forth herein and may conclusively rely on upon, and shall be protected in acting or refraining from acting upon on, any written notice, instruction, instrument, statement, request instrument or document furnished to it hereunder and signature believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person party or partyparties duly authorized to do so. The Escrow Agent shall have no responsibility for the contents of any writing contemplated herein and may rely without any liability upon the contents thereof. Notwithstanding anything to the contrary in this Escrow Agreement, without being where Escrow Agent is required to determine take action upon delivery by the authenticity or correctness of any fact stated therein Stockholder or the propriety Purchaser (or validity both of them) of a notice, certificate or instructions to the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion Escrow Agent shall not be obligated to take any action until the appropriate party (or parties) has acted by delivering the certificate, notice or instructions to the Escrow Agent (none of which shall be binding upon the Escrow Agent unless in writing) as to the action to be taken hereunder indicating in writing that a copy of such counsel certificate, notice or instructions has been delivered to be full the other party. The Stockholder and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company Purchaser acknowledge that the Escrow Agent is acting solely as a stakeholder at their request bound only by the terms of this Escrow Agreement and that the Escrow Agent shall not be required to use its discretion with respect to any matter that is the subject of this Escrow Agreement or with respect to instructions received under this Escrow Agreement.
(d) The Escrow Agent shall not be liable for any action taken by Escrow Agent or omission in good faith and believed by Escrow Agent it to be authorized hereby or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber it hereunder, nor for action or omission in good faith and Company, jointly and severally, agree to indemnify and hold harmless in accordance with advice of outside counsel (which counsel may be of the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agentown choosing), and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making mistakes of fact or retention error of judgment or for any acts or omissions of any investment kind unless caused by its own willful misconduct or gross negligence.
(e) Except as set forth in accordance the next sentence, the Purchaser and its respective successors and assigns will indemnify and hold harmless Escrow Agent against any and all losses, claims, damages, liabilities and expenses, including reasonable costs of investigation, counsel fees and disbursements that may be imposed on Escrow Agent or incurred by Escrow Agent in connection with its acceptance of appointment or the performance of its duties under this Escrow Agreement.
(f, including any litigation arising from this Escrow Agreement or involving its subject matter, except as a result of Escrow Agent's own gross negligence or willful misconduct. The Stockholder and its respective successors and assigns will indemnify and hold harmless Escrow Agent against any and all losses, claims, damages, liabilities and expenses, including reasonable costs of investigation, counsel fees and disbursements that may be imposed on Escrow Agent or incurred by Escrow Agent in connection with or arising out of Section 2(d) This Agreement sets forth exclusively of this Escrow Agreement, including any litigation arising therefrom or involving its subject matter, except as a result of Escrow Agent's own gross negligence or willful misconduct. Notwithstanding the duties of preceding two sentences, if a court finally determines that any party hereto acted unreasonably in failing to give a notice or acknowledgment hereunder, such party shall indemnify the Escrow Agent with respect pursuant to any this clause (e) and all matters pertinent thereto and no implied duties or obligations the other party hereto shall be read into this Agreement.
(g) The relieved of any obligation to indemnify the Escrow Agent shall be permitted pursuant to this clause (e) to the extent that such failure to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to reasonably causes the Escrow AgreementAgent to incur any losses, whether or not claims, damages, liabilities and expenses, including reasonable costs, fees and disbursements referred to in the first sentence of this clause (e), for which the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues entitled to act as the Escrow Agent hereunder.
indemnification pursuant to this clause (h) The provisions of this Section 4.1 e). Such indemnity shall survive the termination or discharge of this Escrow Agreement or resignation of the Escrow Agent or the termination of this AgreementAgent.
Appears in 2 contracts
Sources: Stockholder Escrow Agreement (BRW Steel Corp), Stockholder Escrow Agreement (BRW Steel Corp)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company All parties acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, is acting solely and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties exclusively as are specifically assumed by the a depository hereunder. The Escrow Agent pursuant shall have no liability to this Agreement; (iii) may rely on and shall be protected any Person in acting upon or refraining from acting upon on any written notice, instructionrequest, instrumentwaiver, statementconsent, request certificate, receipt, authorization, or other paper or document furnished to it hereunder and believed by which the Escrow Agent in good faith believes to be genuine and what it purports to have been signed or presented by be.
b) The Escrow Agent may confer with legal counsel in the proper person or party, without being required to determine the authenticity or correctness event of any fact stated therein dispute or question as to the propriety or validity or the service thereof; (iv) may assume that construction of any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with of the provisions hereof is so authorized; (v) hereof, or its duties hereunder, and shall not incur no liability and it shall be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection fully protected in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and acting in accordance with the opinion opinions of such counsel.
(bc) The Subscriber and Company acknowledge In the event of any conflicting or inconsistent claims or demands being made in connection with the subject matter of this Escrow Agreement, or in the event that the Escrow Agent is acting solely in doubt as a stakeholder to what action it should take hereunder, the Escrow Agent may, at their request its option refuse to comply with any claims or demands on it, or refuse to take any other action hereunder so long as such disagreement continues or such doubts exists, and that in any such event, the Escrow Agent shall not be or become liable in any way or to any person for any action taken by its failure or refusal to act, and the Escrow Agent in good faith shall be entitled to continue to refrain from acting until (i) the rights of all parties have been fully and believed finally adjudicated by a court of competent jurisdiction, or (ii) all differences shall have been settled and all doubt resolved by agreement among all on the interested Persons, and the Escrow Agent shall have been notified thereof in writing singed by all such Persons. In addition to be authorized or within the rights or powers conferred upon foregoing rights, in the event the Escrow Agent by has any doubt as to the course of action it should take under this Escrow Agreement, the Escrow Agent is hereby authorized to petition any District Court of Maricopa County or the United States District Court of the District of Arizona for instructions or to interplead the funds or assets so held (including Property and any investments) into such court. The Subscriber parties agree to the jurisdiction of either of said courts over their persons as well as the Property, waive personal service of process, and Companyagree that service of process by certified or registered mail, jointly return receipt requested, to the address set forth below each party's signature to the Escrow Agreement shall constitute adequate service. The Depositor and severally, the Other Party hereby agree to indemnify and hold harmless the Escrow Agent harmless from any liability or losses occasioned thereby and to pay any and all of Escrow Agent's partnersits fees, employeescost, agents expenses, and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable counsel fees of outside counsel and other reasonable costs and expenses of defending itself against incurred in any claim such action and agree that, on such petition or liability under this Agreementinterpleader action, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel feesits servants, to the extent authorized hereunder and incurred in connection with the performance agents, employees or officers will be relived of its duties and responsibilities hereunderfurther liability.
d) THE INDEMNIFIED PARTY SHALL NOT BE LIABLE TO ANY PERSON FOR ANYTHING WHICH IT MAY DO OR REFRAIN FROM DOING IN CONNECTION WITH THIS ESCROW AGREEMENT INCLUDING THE INDEMNIFIED PARTY'S OWN NEGLIGENCE, BUT EXCLUDING THE INDEMNIFIED PARTY" OWN GROSS NEGLIGENCE OR WILLFUL MALFEASANCE. THE INDEMNIFIED PARTY'S LIABILITY FOR ANY GROSSLY NEGLIGENT PERFORMANCE OR THE NONPERFORMANCE SHALL NOT EXCEED ITS FEES IN CONNECTION WITH THE SERVICES PROVIDED HEREUNDER. IN NO EVENT SHALL THE INDEMNIFIED PARTY BE LIABLE TO THE DEPOSITOR OR THE OTHER PARTY OR ANY PARTY FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR LOSS OF BUSINESS, ARISING UNDER OR IN CONNECTION WITH THIS ESCROW AGREEMENT.
e) THE DEPOSITOR AND THE OTHER PARTY HEREBY AGREE JOINTLY AND SEVERALLY TO PROTECT, DEFEND, INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTY AGAINST ANY AND ALL COSTS, LOSSES, DAMAGES, LIABILITIES, CLAIMS EXPENSES (dINCLUDING COUNSEL FEES AND EXPENSES) AND CLAIMS INCURRED BY IT WITHOUT GROSS NEGLIGENCE OR WILLFUL MALFEASANCE ON THE INDEMNIFIED PARTY'S PART ARISING OUT OF OR IN ITS DUTIES HEREUNDER, INCLUDING THE COST AND EXPENSES OF DEFENDING ITSELF AGAINST ANY CLAIM OF LIABILITY RELATING TO THIS ESCROW AGREEMENT.
f) The Escrow Agent may at resign for any time resign as Escrow Agent hereunder by giving five (5) reason, upon 30 days prior written notice of resignation to the Subscriber Depositor and the CompanyOther Party to this Escrow Agreement. Prior to the effective date Upon expiration of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company30 day notice period, the Escrow Agent may apply will deliver all Property in its possession under this Escrow Agreement to a any successor escrow agent appointed jointly by Depositor and the Other Party, or if no successor escrow agent has been so appointed, to any court of competent jurisdiction in Maricopa County, Arizona. Upon either such delivery, the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for released from any loss resulting from the making or retention of any investment in accordance with and all liability under this Escrow Agreement.
(fg) This Contemporaneously with the execution of this Escrow Agreement sets forth exclusively the duties of Other Party shall pay to the Escrow Agent with respect an Acceptance Fee $1,500.00 and a base Annual Administration Fee of $1,500.00, which fee shall be deemed fully earned immediately, regardless of the actual length of time during which this Escrow Agreement is effective. In addition the Other Party agrees to pay to the Escrow Agent its customary fees and expenses, including pre approved counsel fees and expenses for the services rendered by it pursuant to the provisions of this Escrow Agreement. The Escrow Agent's current fee schedule is attached hereto as Exhibit B (but such fees may be adjusted from time to time, in which case the Other Party agrees to pay the adjusted fees).
h) It is strictly understood that the Escrow Agent has no duty to disburse any funds to any Person until such funds have been collected by the Escrow Agent and all matters pertinent thereto and no implied duties or obligations those funds are available in accordance with normal banking procedures and/or policy.
i) No assignment of the interest of any of the parties hereto shall be read into this Agreement.
(g) The binding upon the Escrow Agent unless and until written evidence of such assignment in form satisfactory to the Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents filed with and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to accepted by the Escrow Agreement, whether Agent.
j) Any corporation or not association into which the Escrow Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business and assets as whole or in part, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is then holding a party, shall be and become the Company Documents and Subscriber Documents and continues to act as the successor Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation hereunder and vested with all of the Escrow Agent title to as was its predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the termination part of this Agreementany of the parties hereto, anything herein to the contrary notwithstanding.
Appears in 2 contracts
Sources: Escrow Agreement (Summa Metals Corp /Nv/), Escrow Agreement (Summa Metals Corp /Nv/)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Each of the Interested Parties acknowledges and Company acknowledge and agree agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or bound bydescribed herein, or for determining or compelling compliance therewith, and shall not otherwise be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant tobound thereby, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are expressly and specifically assumed by set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent pursuant to this Agreement; Agent, (iii) shall not be obligated to take any legal or other action hereunder that might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person or partypersons, without being required and shall have no responsibility for making inquiry as to determine or determining the authenticity genuineness, accuracy or correctness validity thereof, or of the authority of any fact stated therein person signing or presenting the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; same, and (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agentit, including in-house counsel, and the opinion or advice of such counsel to in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for to any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives person for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, it hereunder except in the case of the Escrow Agent’s gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under breach of the terms of this Agreement. The In no event shall the Escrow Agent shall owe a duty only to be liable for any indirect, punitive, special or consequential damage or loss (including lost profits) whatsoever, even if the Subscriber Escrow Agent has been informed of the likelihood of such loss or damage and Company under this Agreement and to no other personregardless of the form of action.
(c) The Subscriber and Company jointly and severally agree to reimburse Escrow Agent shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other sub-escrow agent employed by the Escrow Agent for reasonable outside counsel feesthan any such book-entry depository, securities intermediary or other sub-escrow agent has to the Escrow Agent, except to the extent authorized hereunder and incurred that such action or omission of any book-entry depository, securities intermediary or other sub-escrow agent was caused by the Escrow Agent’s own gross negligence or willful misconduct in connection with the performance breach of its duties and responsibilities hereunderthis Agreement.
(d) The Escrow Agent may at Notwithstanding any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation term in this Agreement to the Subscriber and the Company. Prior to the effective date of the resignation as specified contrary, in such notice, the Subscriber and Company will issue to no instance shall the Escrow Agent a Joint Instruction authorizing delivery be required or obligated to distribute any Escrow Property (or take other action that may be called for hereunder to be taken by the Escrow Agent) sooner than two business days after (i) it has received the applicable documents required under this Agreement in proper form, or (ii) passage of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by applicable time period (or both, as applicable under the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination terms of this Agreement), as the case may be.
Appears in 2 contracts
Sources: Escrow Agreement (GoFish Corp.), Escrow Agreement (GoFish Corp.)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property Escrow Funds held by Escrow Agent it hereunder any greater degree of care than Escrow Agent it gives its own similar property; property and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for required to invest any action taken by Escrow Agent in good faith and believed by Escrow Agent funds held hereunder except as directed pursuant to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any Section 1 of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(fb) This Escrow Agreement expressly sets forth exclusively all the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence, willful misconduct or breach of this Escrow Agreement) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section 4(f) and Section 4(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute makes no representation as to the disposition validity, value, genuineness or the collectibility of the Company Documents and Subscriber Documents, in any security or other dispute between the Subscriber and Company which is unrelated documents or instrument held by or delivered to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderit.
(h) The provisions Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Section 4.1 shall survive the Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 4(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent hereunder, a fee of $1,500 as payment in full for the services to be rendered by the Escrow Agent hereunder. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent's name or the termination rights, powers or duties of this Agreementthe Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Sources: Escrow Agreement (maniaTV Inc.), Escrow Agreement (Canfield Medical Supply, Inc.)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Escrow Agent hereby accepts the agency established by this Agreement and shall perform the same upon the terms and conditions herein set forth, by all of which Buyer and the Company acknowledge and agree that shall be bound. The duties of the Escrow Agent (i) hereunder shall be purely ministerial. The Escrow Agent shall not be responsible for have any duties or bound byresponsibilities except those expressly set forth herein, and shall not be required to inquire into whether either the Subscriber no implied covenants or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) obligations shall be obligated only for read into this Agreement against the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, whose duties and obligations shall be determined solely by the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counselexpress provisions hereof.
(b) The Subscriber Escrow Agent shall not (i) be liable for any action taken or suffered or omitted to be taken by it in good faith in the belief that any documents or any signatures are genuine or properly authorized, (ii) be responsible for any failure on the part of the Company or Buyer or any predecessor Escrow Agent to comply with any of its representations, warranties, covenants or agreements contained in this Agreement, or (iii) be liable for any act or omission in connection with this Agreement, except in each case for its own gross negligence or willful misconduct. The Escrow Agent is hereby irrevocably authorized to, and Company acknowledge that shall, (A) act in accordance with this Agreement, and (B) make the releases and deliveries as provided in Section 2. Subject to the foregoing, the Escrow Agent hereby is acting solely as a stakeholder at their request authorized to accept instructions with respect to the performance of its duties hereunder from Buyer and that the Company, and the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken suffered or omitted to be taken by it in good faith in accordance with the instructions of Buyer and the Company, except for its own gross negligence or willful misconduct. However, if Escrow Agent or any of them hereunder, including the incurs reasonable legal fees of outside counsel and other reasonable costs and expenses in connection with its successful defense of defending itself against any a claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The misconduct, the Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other personbe indemnified for such fees.
(c) The Subscriber Escrow Agent may execute and exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its officers, agents or employees, and the Escrow Agent shall not be answerable or accountable for any action taken, default, neglect or misconduct of any such officer, agent or employee, except for the gross negligence or willful misconduct of the Escrow Agent or any of them. The Escrow Agent shall not be under any obligation or duty to institute, appear in, or defend any action, suit or proceeding in respect hereof, unless first indemnified to its reasonable satisfaction, but this provision shall not affect the power of the Escrow Agent to take such action as the Escrow Agent may consider proper, whether with or without such indemnity. Notwithstanding anything in this Agreement that may be to the contrary, the Escrow Agent shall have no liability hereunder to any of the other parties for complying in good faith with any judgment or order of a court of competent jurisdiction. The Escrow Agent shall notify Buyer and the Company of any claim made or action, suit or proceeding instituted against it arising out of or in connection with this Agreement.
(d) Buyer and the Company from time to time shall perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further acts, instruments and assurances as may be reasonably required by the Escrow Agent in order to enable it to carry out or perform its duties under this Agreement.
(e) The Company and Buyer jointly and severally agree to reimburse the Escrow Agent for its reasonable outside counsel feesexpenses, including taxes and governmental charges of any kind and nature, incurred by the Escrow Agent hereunder; and further jointly and severally agree to indemnify the extent authorized hereunder Escrow Agent and incurred save it harmless against any and all losses, liabilities, damages and expenses and for anything done, suffered or omitted by the Escrow Agent in connection with the performance execution of its duties and responsibilities powers hereunder, except as a result of the Escrow Agent's gross negligence or willful misconduct. As between the Company and Buyer, any amounts payable to the Escrow Agent pursuant to the preceding sentence shall be payable by Buyer.
(df) The Escrow Agent may at any time resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Escrow Agent hereunder by Agent's own gross negligence or willful misconduct), after giving five (5) days prior written notice of resignation to the Subscriber Company and Buyer, such resignation and discharge to be effective as hereinafter provided. With the Company. Prior to the effective date prior consent of the resignation as specified in such noticeCompany (which consent shall not be unreasonably withheld or delayed), the Subscriber and Company will issue to Buyer may remove the Escrow Agent upon at least 10 days' prior notice, and the Escrow Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder (except as aforesaid), such removal and discharge to be effective as hereinafter provided. No such resignation or removal shall take effect until a Joint Instruction authorizing delivery of new escrow agent which Buyer and the Company Documents shall have approved in writing (such approval not to be unreasonably withheld or delayed) shall have been appointed and Subscriber Documents shall have agreed to assume the Escrow Agent's duties hereunder, as hereinafter provided. After such a substitute new escrow agent shall accept such appointment in writing, such new escrow agent shall be vested with the same powers, rights, property, duties and responsibilities as if it had been originally named herein as Escrow Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done and shall be legally and validly executed and delivered by the resigning or removed Escrow Agent.
(g) Notwithstanding anything in this Agreement that may be to the contrary: (i) if the Escrow Agent selected by shall receive notice advising that litigation in connection with the Subscriber and Company. If no successor Escrow Agent is named by Escrowed Property, the Subscriber and CompanyTender Offer Agreement or this Agreement has been commenced, the Escrow Agent may apply to deposit the Escrowed Property with the Clerk of the Court in which said litigation is pending; or (ii) the Escrow Agent may deposit the Escrowed Property in a court of competent jurisdiction and commence an action for interpleader, the costs thereof to be borne jointly and severally by Buyer and the Company. Upon the occurrence of any of the foregoing events set forth in the State of New York for appointment of a successor Escrow Agentpreceding sentence, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition automatically released of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent from all liability hereunder.
(h) The provisions of this Section 4.1 Nothing herein shall survive the resignation of preclude the Escrow Agent from acting in any other capacity for Buyer, the Company or any of their respective affiliates.
(i) Escrow Agent may consult with outside legal counsel at the termination reasonable expense of [Buyer] as to any matter relating to this Agreement.
Appears in 2 contracts
Sources: Escrow Agreement (FMCC Acquisition Corp), Escrow Agreement (First of Michigan Capital Corp)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Purchaser and the Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber Purchaser, the Company or Company any other party is entitled to receipt of any Document or all or any portion of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwiseEscrowed Payment; (ii) shall not be called upon to construe or review any Document or any other document, instrument or agreement entered into in connection therewith; (iii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iiiiv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (ivv) may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice or make any statement or execute any document in connection with the provisions hereof is so authorizedhas been duly authorized to do so; (vvi) shall not be responsible for the identity, authority or rights of any person, firm or company executing or delivering or purporting to execute or deliver this Agreement or any Document or any funds deposited hereunder or any endorsement thereon or assignment thereof; (vii) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (viviii) may consult counsel satisfactory to Escrow Agent (including, without limitation, Loeb & Loeb, LLP or such other counsel of Escrow Agent's choosing), the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber Purchaser and the Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber Purchaser and Companythe Company hereby, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for from and against any action and all actions taken or omitted to be taken by Escrow Agent or any of them hereunderhereunder and any and all claims, losses, liabilities, costs, damages and expenses suffered and/or incurred by the Escrow Agent arising in any manner whatsoever out of the transactions contemplated by this Agreement and/or any transaction related in any way hereto, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under claims, losses, liabilities, costs, damages and expenses arising in any manner whatsoever out the transactions contemplated by this AgreementAgreement and/or any transaction related in any way hereto, except in for such claims, losses, liabilities, costs, damages and expenses incurred by reason of the case of Escrow Agent's gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementmisconduct. The Escrow Agent shall owe a duty only to the Subscriber Purchaser and the Company under this Agreement and to no other person.
(c) The Subscriber Purchaser and the Company shall jointly and severally agree to reimburse the Escrow Agent for its reasonable outside out-of-pocket expenses (including counsel fees, to fees (which counsel may be Loeb & Loeb LLP or such other counsel of the extent authorized hereunder and Escrow Agent's choosing) incurred in connection with the performance of its duties and responsibilities hereunder, which shall not (subject to Section 4.1(b)) exceed $2,000.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) business days prior written notice of resignation to the Subscriber Purchaser and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber Purchaser and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents the Escrowed Payment to a substitute Escrow Agent selected by the Subscriber Purchaser and the Company. If no successor Escrow Agent is named by the Subscriber Purchaser and the Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents the Escrowed Payment with the clerk of any such courtcourt and/or otherwise commence an interpleader or similar action for a determination of where to deposit the same.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documentsthe Escrowed Payment, but is serving only as escrow agent, having only possession thereof. .
(f) The Escrow Agent shall not be liable for any loss resulting from action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or within the making rights or retention of any investment powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with this advice of counsel (which counsel may be Loeb & Loeb, LLP or such other counsel of the Escrow AgreementAgent's choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except to the extent any such liability arose from its own willful misconduct or gross negligence.
(fg) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(gh) The Escrow Agent shall be permitted to act as counsel for the Subscriber Purchaser or the Company, as the case may be, in any dispute as to the disposition of the Company Documents and Subscriber Documentsthe Escrowed Payment, in any other dispute between the Subscriber Purchaser and Company which is unrelated to the Escrow AgreementCompany, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and/or the Escrowed Payment and continues to act as the Escrow Agent hereunder.
(hi) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 2 contracts
Sources: Funds Escrow Agreement (Windswept Environmental Group Inc), Funds Escrow Agreement (National Investment Managers Inc.)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Escrow Agent shall not have any liability to any of the parties to this Agreement or to any third party arising out of its services as Escrow Agent under this Agreement, except for damages directly resulting from the Escrow Agent's gross negligence or willful misconduct.
(b) The Company and Company acknowledge the Investors jointly and agree severally shall indemnify the Escrow Agent and hold it harmless against any loss, liability, damage or expense (including reasonable attorneys' fees) that the Escrow Agent (i) shall not be responsible may incur as a result of acting as escrow agent under this Agreement, except for any loss, liability, damage or bound by, and shall not be required to inquire into whether either the Subscriber expense arising from its own gross negligence or Company is entitled to receipt of willful misconduct. As between the Company Documents and Subscriber Documents pursuant tothe Investors, any other agreement or otherwise; (ii) such obligations shall be obligated only for the performance of such duties as are specifically assumed borne equally by the Escrow Agent pursuant Company and the Investors. For this purpose, the term "attorneys' fees" includes fees payable to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed counsel retained by the Escrow Agent in good faith connection with its services under this Agreement and, with respect to be genuine any matter arising under this Agreement as to which the Escrow Agent performs legal services, if and to have been signed the extent that the Escrow Agent itself is a law firm, its standard hourly rates and charges then in effect.
(c) The Escrow Agent shall be entitled to rely upon any judgment, notice, instrument or presented by the proper person or party, other writing delivered to it under this Agreement without being required to determine the authenticity of, or the correctness of any fact stated therein in, that document and irrespective of any facts the Escrow Agent may know or the propriety be deemed to know in any other capacity. The Escrow Agent may act in reliance upon any instrument or validity or the service thereof; (iv) signature believed by it to be genuine and may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give any notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and has been duly authorized to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunderdo so.
(d) The Escrow Agent may at any time resign as shall have no duties or responsibilities except those expressly set forth in this Agreement. The Escrow Agent hereunder shall not have any obligations arising out of or be bound by giving five the provisions of any other agreement, written or oral, including, but not limited to, the Securities Purchase Agreement.
(5e) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date All of the Escrow Agent's rights of indemnification provided for in this Agreement shall survive the resignation as specified in such notice, the Subscriber and Company will issue to of the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected Agent, its replacement by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, its delivery or deposit of the Escrow Deposit in accordance with this Agreement, the termination of this Agreement, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtother event that occurs after this date.
(ef) The Escrow Agent does not shall have no responsibility with respect to the sufficiency of the arrangements contemplated by this Agreement to accomplish the intentions of the parties.
(g) The Investors and will not have any interest in the Placement Agent acknowledge that they know that the Escrow Agent has represented the Company Documents in connection with the Securities Purchase Agreement and Subscriber Documentsthis Agreement and that it may continue to represent the Company in that connection and in connection with the transactions contemplated by those agreements, including, but is serving only as escrow agentnot limited to, having only possession thereofin connection with any disputes that may arise under either of those agreements. The Escrow Agent shall not be liable precluded from or restricted from representing the Company or any of its affiliates or otherwise acting as attorneys for the Company or any loss resulting from of its affiliates in any matter, including, but not limited to, any court proceeding or other matter related to the making Securities Purchase Agreement, this Agreement or retention of any investment in accordance with the transactions contemplated by the Securities Purchase Agreement, or this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of or the Escrow Agent Deposit, whether or not there is a dispute between the Investors and the Company with respect to any such matter. The Investors and all matters pertinent thereto the Placement Agent irrevocably consent to any such representation and no implied duties waive any conflict or obligations shall be read into this Agreementappearance of conflict with respect to any such representation.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 2 contracts
Sources: Escrow Agreement (Sunset Suits Holdings, Inc.), Escrow Agreement (Fashion Tech International Inc)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's ’s duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Subscribers and the Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber Subscribers or Company is entitled to receipt of the Company Documents and Subscriber Documents Documents, respectively, pursuant to, to any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber Subscribers and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber Subscribers and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's ’s partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's ’s part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber Subscribers and Company under this Agreement and to no other person.
(c) The Subscriber Subscribers and the Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days days’ prior written notice of resignation to the Subscriber Subscribers and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber Subscribers and the Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber Subscribers and the Company. If no successor Escrow Agent is named by the Subscriber Subscribers and the Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Other than in connection with the Subscriber Legal Fees, the Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber Subscribers in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber Subscribers and Company which is unrelated to the Escrow AgreementCompany, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 2 contracts
Sources: Subscription Agreement (Wizard World, Inc.), Subscription Agreement (Wizard World, Inc.)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Each Interested Party acknowledges and Company acknowledge and agree agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or bound bydescribed herein (including without limitation the Purchase Agreement, other than with respect to the definitions of certain terms used herein, which definitions are set forth in this Escrow Agreement), or for determining or compelling compliance therewith, and shall not otherwise be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant tobound thereby, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are expressly and specifically assumed by set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent pursuant to this Agreement; Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person person, and shall have no responsibility or party, without being required duty to make inquiry as to or to determine the authenticity or correctness of any fact stated therein or the propriety genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the service thereof; (iv) may assume that any authority of the person believed by signing or presenting the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; same, and (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agentit, including in-house counsel, and the opinion or advice of such counsel to in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives anyone for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, it hereunder except in the case of the Escrow Agent’s gross negligence or willful misconduct on Escrow Agent's part committed in its capacity (as finally adjudicated by a court of competent jurisdiction). In no event shall the Escrow Agent under this Agreement. The be liable for any indirect, punitive, special, incidental or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall owe a duty only to has been informed of the Subscriber likelihood of such loss or damage and Company under this Agreement and to no other personregardless of the form of action.
(c) The Subscriber and Company jointly and severally agree to reimburse Escrow Agent shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by the Escrow Agent for reasonable outside counsel feesthan any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except to the extent authorized hereunder and incurred in connection with that such action or omission of any book-entry depository, securities intermediary or other subescrow agent was caused by the performance Escrow Agent’s own gross negligence or willful misconduct (as finally adjudicated by a court of its duties and responsibilities hereundercompetent jurisdiction).
(d) The Escrow Agent may at is hereby authorized, in making or disposing of any time resign investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as Escrow Agent hereunder by giving five (5) days prior written notice a subagent of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York or for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtthird person or dealing as principal for its own account.
(e) The Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent does not have and will not have be required or obligated to distribute any interest Escrow Property (or take other action that may be called for hereunder to be taken by the Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Agreement in good form, or (ii) passage of the Company Documents and Subscriber Documentsapplicable time period (or both, but is serving only as escrow agentapplicable under the terms of this Agreement), having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from as the making or retention of any investment in accordance with this Escrow Agreementcase may be.
(f) This Agreement sets Unless and except to the extent otherwise expressly set forth exclusively herein, all deposits and payments hereunder, or pursuant to the duties of terms hereof (including without limitation all payments to the Escrow Agent with respect pursuant to any and all matters pertinent thereto and no implied duties or obligations Section 7 below) shall be read into this Agreementin U.S. dollars.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Mimecast LTD)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for have no duties or bound by, responsibilities except those expressly set forth herein. The Escrow Agent may consult with counsel and shall not be required to inquire into whether either the Subscriber have no liability hereunder except for its own negligence or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) willful misconduct. It may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrumentcertificate, statement, request request, consent, confirmation, agreement or document furnished to other instrument which it hereunder and believed by the Escrow Agent in good faith reasonably believes to be genuine and to have been signed or presented by the a proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counselpersons.
(b) The Subscriber and Company acknowledge that Escrow Agent shall have no duties with respect to any agreement or agreements with respect to any or all of the Escrow Agent is acting solely Funds other than as a stakeholder at their request provided in this Agreement. In the event that any of the terms and that provisions of any other agreement between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control in all respects. Notwithstanding any provision to the contrary contained in any other agreement, the Escrow Agent shall not be liable for any action taken by have no interest in the Escrow Agent Funds except as provided in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse So long as the Escrow Agent for reasonable outside counsel fees, shall have any obligation to pay any amount to the extent authorized hereunder Stockholders and/or the Company from the Escrow Funds hereunder, the Escrow Agent shall keep proper books of record and incurred account, in connection with which full and correct entries shall be made of all receipts, disbursements and investment activity in the performance of its duties and responsibilities hereunderEscrow Account.
(d) The Escrow Agent may at shall not be bound by any time resign as Escrow Agent hereunder by giving five (5) days prior written notice modification of resignation to this Agreement affecting the Subscriber rights, duties and the Company. Prior to the effective date obligations of the resignation as specified Escrow Agent, unless such modification shall be in such noticewriting and signed by the other parties hereto, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute shall have given its prior written consent thereto. The Escrow Agent selected shall not be bound by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, any other modification of this Agreement unless the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtshall have received written notice thereof.
(e) The Escrow Agent does may resign as escrow agent at any time by giving thirty (30) days written notice by registered or certified mail to the Company, the Stockholders' Representative and SWIB and such resignation shall take effect at the end of such 30 days or upon earlier appointment of a successor. A successor escrow agent hereunder may be appointed by designation in writing signed by the Company, the Stockholders' Representative and SWIB. The Company and the Stockholders' Representative undertake to utilize their best efforts to arrange for the appointment of a successor escrow agent. If any instrument of acceptance by a successor escrow agent shall not have been delivered to the Escrow Agent within sixty (60) days after the giving of such notice of resignation, the resigning Escrow Agent may at the expense of the Stockholders and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as petition any court of competent jurisdiction for the appointment of a successor escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively If at any time hereafter the duties Escrow Agent shall resign, be removed, be dissolved or otherwise become incapable of acting, or the bank or trust company acting as the Escrow Agent shall be taken over by any government official, agency, department or board, or the position of the Escrow Agent with respect shall become vacant for any of the foregoing reasons or for any other reason, the Stockholders' Representative, the Company and SWIB shall appoint a successor escrow agent to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreementfill such vacancy.
(g) The Escrow Agent Every successor escrow agent appointed hereunder shall execute, acknowledge and deliver to its predecessor, and also to the Company, the Stockholders' Representative and SWIB, an instrument in writing accepting such appointment hereunder, and thereupon such successor escrow agent, without any further act, shall become fully vested with all the rights, immunities and powers and shall be permitted subject to act as counsel for the Subscriber in any dispute as to the disposition all of the Company Documents duties and Subscriber Documentsobligations, in any other dispute between the Subscriber of its predecessor; and Company which is unrelated every predecessor escrow agent shall deliver all property and moneys held by it hereunder to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderits successor.
(h) The provisions Company and the Stockholders shall share equally the fee charged by the Escrow Agent for performing its services hereunder. The portion of such fee owed by the Stockholders shall be deducted from the Escrow Account by the Escrow Agent. Except as provided in Section 9(i) hereof, the Company and the Stockholders shall share equally any reasonable out of pocket cost incurred by the Escrow Agent in performing its duties hereunder. This covenant shall survive termination of this Section 4.1 Agreement.
(i) The Company and the Stockholders (other than SWIB) shall indemnify and hold the Escrow Agent harmless from and against any and all expenses (including reasonable attorneys' fees), liabilities, claims, damages, actions, suits or other charges ("Agent Claims") incurred by or assessed against the Escrow Agent for anything done or omitted by the Escrow Agent in the performance of the Escrow Agent's duties hereunder, except such which result from the Escrow Agent's bad faith, gross negligence or willful misconduct. Agent Claims payable hereunder shall be paid one-half by the Company and one-half by the Stockholders. This indemnity shall survive the resignation of the Escrow Agent or the termination of this Agreement. To the extent any amount due to the Escrow Agent from the Stockholders pursuant to this Section 9(i) is not paid, the Escrow Agent may deduct fifty percent (50%) of the same from the Escrow Account.
(j) The Escrow Agent's fees shall be $1,800 per annum.
(k) To the extent of any conflict between the terms of this Agreement and the terms of EXHIBIT B, the terms of EXHIBIT B shall control.
Appears in 1 contract
Sources: Indemnification and Escrow Agreement (Omniquip International Inc)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities a. The Escrow Agent shall not have any liability to any of the parties to this Agreement or to any third party arising out of its services as Escrow Agent under this Agreement, except for damages directly resulting from the Escrow Agent. The 's gross negligence or willful misconduct.
b. Buyer and Sellers jointly and severally shall indemnify the Escrow Agent's duties Agent and responsibilities shall be subject to the following terms and conditions:
hold it harmless against any loss, liability, damage or expense (aincluding reasonable attorneys' fees) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt may incur as a result of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties acting as are specifically assumed by the Escrow Agent pursuant to escrow agent under this Agreement; (iii) may rely on and shall be protected in acting , except for any loss, liability, damage or refraining expense arising from acting upon its own gross negligence or willful misconduct. For this purpose, the term "attorneys' fees" includes fees payable to any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed counsel retained by the Escrow Agent in good faith connection with its services under this Agreement and, with respect to any matter arising under this Agreement as to which the Escrow Agent performs legal services, its standard hourly rates and charges then in effect.
c. The Escrow Agent shall be genuine and entitled to have been signed rely upon any judgment, notice, instrument or presented by the proper person or party, other writing delivered to it under this Agreement without being required to determine the authenticity of, or the correctness of any fact stated therein in, that document and irrespective of any facts the Escrow Agent may know or the propriety be deemed to know in any other capacity. The Escrow Agent may act in reliance upon any instrument or validity or the service thereof; (iv) signature believed by it to be genuine and may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give any notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty this Agreement has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counseldo so.
(b) d. The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent have no duties or responsi bilities except those expressly set forth in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to not have any obligations arising out of or be bound by the Subscriber and Company under this Agreement and to no provisions of any other personagreement, written or oral, including, but not limited to, the Stock Purchase Agreement.
(c) The Subscriber and Company jointly and severally agree to reimburse e. Buyers each acknowledge that the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred has represented Sellers in connection with the performance of its duties Stock Purchase Agreement and responsibilities hereunder.
(d) The Escrow Agent this Agreement and that it may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation continue to the Subscriber represent Sellers in that connection and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents connection with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documentstransactions contemplated by those agreements, including, but is serving only as escrow agentnot limited to, having only possession thereofin connection with any disputes that may arise under either of those agreements. The Escrow Agent shall not be liable precluded from or restricted from representing Buyer or otherwise acting as attorneys for Sellers in any loss resulting from matter, including, but not limited to, any court proceeding or other matter related to the making Stock Purchase Agreement or retention of any investment in accordance with the transactions contemplated by the Stock Purchase Agreement, or this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of or the Escrow Agent Documents, whether or not there is a dispute between Buyers and Sellers with respect to any such matter. Buyers each irrevocably consent to any such representation and all matters pertinent thereto and no implied duties waives any conflict or obligations shall be read into this Agreementappearance of conflict with respect to any such representation.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition f. All of the Company Documents and Subscriber Documents, Escrow Agent's rights of indemnification provided for in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 agreement shall survive the resignation of the Escrow Agent Agent, its replacement by a successor Escrow Agent, its delivery or deposit of the Escrow Documents in accordance with this Agreement, the termination of this Agreement, and any other event that occurs after this date.
g. The Escrow Agent shall have no responsibility with respect to the sufficiency of the arrangements contemplated by this Escrow Agreement to accomplish the intentions of the parties.
h. The Escrow Agent shall have not laibility to any of the parties hto this Agreement, or to third parties, as a result of any act or omission to act taken on reliance upon the written advice of its counsel.
Appears in 1 contract
Sources: Stock Purchase Agreement (Able Telcom Holding Corp)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of To induce the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject Agent to act hereunder, it is further agreed by the following terms and conditionsundersigned that:
(a) The Subscriber and Company acknowledge and agree that This Escrow Agreement expressly sets forth all the duties of the Escrow Agent (i) with respect to any and all matters pertinent hereto. No implied duties or obligations on the part of the Escrow Agent shall be read into this Escrow Agreement. The Escrow Agent shall not be responsible for or bound by, and by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(b) The Escrow Agent shall not be required liable for any action or failure to inquire into whether either act in its capacity as Escrow Agent hereunder unless such action or failure to act shall constitute willful misconduct on the Subscriber or Company is part of the Escrow Agent, in which case there shall be no indemnification obligations.
(c) The Escrow Agent shall be entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume act in reliance upon any instrument or signature believed by it to be genuine and may assume, unless he has actual knowledge to the contrary, that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunderdo so.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation act pursuant to the Subscriber advice of counsel with respect to any matter relating to this Escrow Agreement and the Company. Prior to the effective date of the resignation shall not be liable for any action taken or omitted in accordance with such advice, except as specified provided in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtparagraph 6(b) above.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber DocumentsShares or Escrow Funds except as provided for herein for fees, as defined in the Agreement, or any other property deposited hereunder but is serving only as escrow agent, holder only and having only possession thereof, and is not charged with any duty or responsibility to determine the validity or enforceability of any such documents.
(f) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Shares and Escrow Funds to any successor Escrow Agent, jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement thereafter. The resignation of the Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safe keep the Shares and Escrow Funds and not make delivery or disposition thereof until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(g) In the event of any disagreement among the parties hereto resulting in adverse claims or demands being made in connection with the Shares or Escrow Funds, or in the event that the Escrow Agent otherwise determines that the Shares and Escrow Funds should be retained, then the Escrow Agent may retain the Shares and Escrow Funds until the Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of the Shares and Escrow Funds, or (ii) a written agreement executed by the other parties hereto directing delivery of the Shares and Escrow Funds, in which case the Escrow Agent shall promptly deliver the Shares and Escrow Funds in accordance with such order or agreement. Any court order referred to in (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 court order is final and non-appealable. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any act on such court order and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderlegal opinion without further question.
(h) The provisions of this Section 4.1 This Escrow Agreement shall survive be binding upon and inure solely to the resignation benefit of the parties hereto and their respective successors (including successors by way of merger) and assigns, heirs, administrators and representatives and shall not be enforceable by or inure to the benefit of any third party except as provided in paragraph (g) with respect to a resignation by the Escrow Agent. Each entity signed represents and warrants that they have the full power and authority to bind the entity and that Escrow Agent or the termination of this Agreementmay rely upon such representation without further inquiry.
Appears in 1 contract
Concerning the Escrow Agent. 4.1(a) The Escrow Agent shall not be required to invest any funds held hereunder except as directed pursuant to Section 3 of this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. Duties and Responsibilities of 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 with respect to the subject matter hereof except this Escrow Agreement. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:are ministerial in nature.
(ac) The Subscriber 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 other parties hereto shall jointly and Company acknowledge severally indemnify and agree that hold harmless the Escrow Agent (iand any successor Escrow Agent) shall from and against any and all losses, liabilities, claims, actions, taxes (not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt including any taxes of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant measured by or imposed upon income, and not including any franchise or excise taxes), damages and expenses, including reasonable attorneys' fees and disbursements, arising out of or in connection with this Escrow Agreement including the legal costs and expenses of defending itself against any claim or liability in connection with its performance hereunder. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in accordance with the terms hereof, or as a result of any liquidation of any such investment prior to this Agreement; its maturity, including any liability for any delays (iiinot resulting from its gross negligence or willful misconduct) may rely on and in the investment or reinvestment of the Escrowed Funds.
(d) The Escrow Agent shall be protected entitled to rely in acting or refraining from acting good faith upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) . The Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counseldo so.
(be) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request may act pursuant to the advice of counsel reasonably acceptable to both Sellers' Representatives and that the Buyer with respect to any matter relating to this Escrow Agent Agreement and shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other personaccordance with such advice.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(ef) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, any Escrowed Funds deposited hereunder but is serving only as escrow agent, agent only and having only possession thereof. The Escrow Agent shall not be liable for any loss resulting Any payments of income from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of shall be subject to withholding regulations then in force with respect to United States taxes. Sellers' Representatives shall provide the Escrow Agent with appropriate W-9 or other certification forms for tax identification number certification, or nonresident alien certifications with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this AgreementSellers.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute makes no representation as to the disposition validity, value, genuineness or the collectability of the Company Documents and Subscriber Documents, in any security or other dispute between the Subscriber and Company which is unrelated documents or instrument held by or delivered to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderit.
(h) The provisions 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) Sellers' Representatives and Buyer may jointly remove the Escrow Agent and terminate this Escrow Agreement upon ten days prior written notice signed by both parties. Upon such removal and termination, all then existing Escrowed Funds (including all investments) shall be transferred in accordance with the joint written instructions of Sellers' Representatives and Buyer.
(j) The Escrow Agent shall have no responsibility for the contents of any court order and may rely without any liability upon the contents thereof.
(k) The Escrow Agent shall be paid $[ ] annually. Sellers' Representative shall on behalf of the Sellers, pay to the Escrow Agent its fees for the acceptance and administration of this Section 4.1 Escrow Agreement (pursuant to the terms of Annex A attached hereto). All fees shall survive be paid in United States currency and payable in the resignation United States at the office of the Escrow Agent. Notwithstanding anything in this Escrow Agreement to the contrary, at any time that the Escrow Agent is authorized or directed or otherwise required to make a disbursement or distribution from the termination Escrowed Funds (A) to the Sellers' Representative or Sellers, the Escrow Agent may refrain from making such disbursement or distribution from the Escrowed Funds, without liability, if and to the extent that there are fees or expenses or any amounts then due to the Escrow Agent from the Sellers pursuant to Section 4(c) then due to the Escrow Agent from the Sellers' Representatives; or (B) to Buyer, the Escrow Agent may refrain from making such disbursement or distribution from the Escrowed Funds, without liability, if and to the extent that there are any amounts then due to the Escrow Agent from the Buyer pursuant to Section 4(c) hereof. Upon receipt of this Agreementpayment for such fees or expenses, the Escrow Agent shall promptly make such disbursements or distributions to Buyer.
Appears in 1 contract
Sources: Purchase Agreement (Ionics Inc)
Concerning the Escrow Agent. 4.15.01 The Escrow Agent shall be entitled to reasonable compensation for its services hereunder and shall be reimbursed for all reasonable expenses, disbursements and advances (including reasonable attorneys' fees and expenses) incurred or made by it in performance of its duties hereunder. Duties Such reasonable compensation, disbursement, expenses and Responsibilities of advances shall be borne equally by Allegro and the Stockholders' Representative and shall be paid promptly upon request by the Escrow Agent. .
5.02 The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving notice of such resignation to Allegro and Stockholders' Representative specifying a date (not less than 30 days after the giving of such notice) when such resignation shall take effect. Promptly after such notice, Allegro and the Stockholders' Representative shall appoint a mutually agreeable successor Escrow Agent's duties , such successor Escrow Agent to become Escrow Agent hereunder upon the resignation date specified in such notice. If Allegro and responsibilities shall be subject the Stockholders' Representative are unable to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that upon a successor Escrow Agent with 30 days after such notice, the Escrow Agent (i) shall not be responsible for or bound byhave the right to petition a court of competent jurisdiction to appoint a successor, and the Escrow Agent shall not be required continue to inquire into whether either serve until its successor accepts the Subscriber or Company is entitled escrow and receives the Escrowed Property.
5.03 The Escrow Agent undertakes to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated perform only for the performance of such duties as are specifically assumed by the set forth herein. The Escrow Agent pursuant acting or refraining from acting in good faith shall not be liable for any mistake of fact or error of judgment by it or for any acts or omissions by it of any kind unless caused by negligence or willful misconduct, and shall be entitled to this Agreement; (iii) may rely on rely, and shall be protected in acting or refraining from acting doing so, upon (a) any written notice, instruction, instrument, statement, request instrument or document furnished to it hereunder and signature believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person party or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be parties duly authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; do so, and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that advice of counsel (which may be of the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partnersown choosing, employees, agents and representatives for any action taken so long as such counsel is not counsel to Allegro or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this AgreementStockholders' Representative). The Escrow Agent shall owe a duty only have no responsibility for the contents of any writing submitted to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized it hereunder and incurred shall be entitled in connection with good faith to rely without any liability upon the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession contents thereof. The Escrow Agent has no responsibilities under, and shall not be liable for any loss resulting from deemed to have no knowledge of, the making or retention provisions of any investment in accordance with this Escrow the Reorganization Agreement.
(f) This Agreement sets forth exclusively 5.04 Allegro and the duties of Stockholders agree to indemnify the Escrow Agent with respect to and hold it harmless against any and all matters pertinent thereto liabilities incurred by it hereunder as a consequence of such indemnifying party's action and no implied duties the Allegro and the Stockholders further agree to indemnify the Escrow Agent and hold it harmless against any and all losses, costs, fees and expenses incurred by the Escrow Agent which are not a consequence of its actions or obligations failure to act, except, in either case for liabilities incurred by the Escrow Agent resulting from its own gross negligence or willful misconduct. One-half of the amount of any such payment or indemnification shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated paid to the Escrow Agreement, whether Agent by Allegro and the other half of the amount of any such payment or not indemnification shall be paid by the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues Stockholders. The indemnification provided pursuant to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 section shall survive the resignation of the Escrow Agent or the termination of this Escrow Agreement.
5.05 In the 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 the Escrowed Property held by it pursuant hereto and, thereupon, shall stand fully relieved and discharged of any further duties hereunder. Also, in the event the Escrow Agent is threatened with litigation by reason hereof, it is hereby authorized to interplead all interested parties in any court of competent jurisdiction and to deposit with the clerk of such court the Escrowed Property held by it pursuant hereto and, thereupon, shall stand fully relieved and discharged of any further duties hereunder.
5.06 In the event of any claim, dispute or litigation concerning the Reorganization Agreement or this Escrow Agreement, Blau, Kramer, Wactlar & ▇▇▇▇▇▇▇▇▇, P.C. shall nevertheless have the unqualified right to represent Allegro, its officers and directors in respect of any such claim, dispute or litigation, notwithstanding that it is acting as Escrow Agent hereunder.
Appears in 1 contract
Sources: Escrow Agreement (Cinnamon Barry A)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Each of the Interested Parties acknowledges and Company acknowledge and agree agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or bound bydescribed herein, or for determining or compelling compliance therewith, and shall not otherwise be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant tobound thereby, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are expressly and specifically assumed by set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent pursuant to this Agreement; Agent, (iii) shall not be obligated to take any legal or other action hereunder that might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person or partypersons, without being required and shall have no responsibility for making inquiry as to determine or determining the authenticity genuineness, accuracy or correctness validity thereof, or of the authority of any fact stated therein person signing or presenting the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; same, and (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agentit, including in-house counsel, and the opinion or advice of such counsel to in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for to any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives person for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, it hereunder except in the case of the Escrow Agent's gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under breach of the terms of this Agreement. The In no event shall the Escrow Agent shall owe a duty only to be liable for any indirect, punitive, special or consequential damage or loss (including lost profits) whatsoever, even if the Subscriber Escrow Agent has been informed of the likelihood of such loss or damage and Company under this Agreement and to no other personregardless of the form of action.
(c) The Subscriber and Company jointly and severally agree to reimburse Escrow Agent shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other sub-escrow agent employed by the Escrow Agent for reasonable outside counsel feesthan any such book-entry depository, securities intermediary or other sub-escrow agent has to the Escrow Agent, except to the extent authorized hereunder and incurred that such action or omission of any book-entry depository, securities intermediary or other sub-escrow agent was caused by the Escrow Agent's own gross negligence or willful misconduct in connection with the performance breach of its duties and responsibilities hereunderthis Agreement.
(d) The Escrow Agent may at Notwithstanding any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation term in this Agreement to the Subscriber and the Company. Prior to the effective date of the resignation as specified contrary, in such notice, the Subscriber and Company will issue to no instance shall the Escrow Agent a Joint Instruction authorizing delivery be required or obligated to distribute any Escrow Property (or take other action that may be called for hereunder to be taken by the Escrow Agent) sooner than two business days after (i) it has received the applicable documents required under this Agreement in proper form, or (ii) passage of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by applicable time period (or both, as applicable under the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination terms of this Agreement), as the case may be.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of To induce the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject Agent to act hereunder, it is further agreed by the following terms and conditionsundersigned that:
(a) The Subscriber and Company acknowledge and agree that This Escrow Agreement expressly sets forth all the duties of the Escrow Agent (i) with respect to any and all matters pertinent hereto. No implied duties or obligations 20 shall on the part of the Escrow Agent shall be read into this Escrow Agreement. The Escrow Agent shall not be responsible for or bound by, and by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(b) The Escrow Agent shall not be required liable for any action or failure to inquire into whether either act in its capacity as Escrow Agent hereunder unless such action or failure to act shall constitute willful misconduct on the Subscriber or Company is part of the Escrow Agent, in which case there shall be no indemnification obligations.
(c) The Escrow Agent shall be entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume act in reliance upon any instrument or signature believed by it to be genuine and may assume, unless he has actual knowledge to the contrary, that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunderdo so.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation act pursuant to the Subscriber advice of counsel with respect to any matter relating to this Escrow Agreement and the Company. Prior to the effective date of the resignation shall not be liable for any action taken or omitted in accordance with such advice, except as specified provided in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtparagraph 8(b) above.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber DocumentsDebentures, Conversion Shares, Escrow Fund or any other property deposited hereunder but is serving only as escrow agent, holder only and having only possession thereof. The Escrow Agent shall , and is not be liable for charged with any loss resulting from duty or responsibility to determine the making validity or retention enforceability of any investment in accordance with this Escrow Agreementsuch documents.
(f) This The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Debentures to any successor Escrow Agent, jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement sets forth exclusively the duties thereafter. The resignation of the Escrow Agent with respect will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written notice of resignation to any and all matters pertinent thereto and no implied duties or obligations the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be read into this Agreementto safekeep the Debentures and not make delivery or disposition thereof until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(g) The Escrow Agent shall be permitted to act as counsel for In the Subscriber event of any disagreement among the parties hereto resulting in any dispute as to adverse claims or demands being made in connection with the disposition of Debentures, or in the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.event that
(h) The provisions of this Section 4.1 This Escrow Agreement shall survive be binding upon and inure solely to the resignation benefit of the parties hereto and their respective successors (including successors by way of merger) and assigns, heirs, administrators and representatives and shall not be enforceable by or inure to the benefit of any third party except as provided in paragraph (g) with respect to a resignation by the Escrow Agent or AGENT.
(i) This Escrow Agreement may be modified by a writing signed by all the termination of this Agreementparties hereto, and no waiver hereunder shall be effective unless in a writing signed by the party to be charged.
Appears in 1 contract
Sources: Securities Subscription Agreement (Revenge Marine Inc)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Purchaser and the Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber Purchaser, the Company or Company any other party is entitled to receipt of any Document or all or any portion of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwiseEscrowed Payment; (ii) shall not be called upon to construe or review any Document or any other document, instrument or agreement entered into in connection therewith; (iii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iiiiv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (ivv) may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice or make any statement or execute any document in connection with the provisions hereof is so authorizedhas been duly authorized to do so; (vvi) shall not be responsible for the identity, authority or rights of any person, firm or company executing or delivering or purporting to execute or deliver this Agreement or any Document or any funds deposited hereunder or any endorsement thereon or assignment thereof; (vii) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (viviii) may consult counsel satisfactory to Escrow Agent (including, without limitation, Loeb & Loeb, LLP or such other counsel of Escrow Agent's choosing), the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber Purchaser and the Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber Purchaser and Companythe Company hereby, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for from and against any action and all actions taken or omitted to be taken by Escrow Agent or any of them hereunderhereunder and any and all claims, losses, liabilities, costs, damages and expenses suffered and/or incurred by the Escrow Agent arising in any manner whatsoever out of the transactions contemplated by this Agreement and/or any transaction related in any way hereto, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under claims, losses, liabilities, costs, damages and expenses arising in any manner whatsoever out the transactions contemplated by this AgreementAgreement and/or any transaction related in any way hereto, except in for such claims, losses, liabilities, costs, damages and expenses incurred by reason of the case of Escrow Agent's gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementmisconduct. The Escrow Agent shall owe a duty only to the Subscriber Purchaser and the Company under this Agreement and to no other person.
(c) The Subscriber Purchaser and the Company shall jointly and severally agree to reimburse the Escrow Agent for its reasonable outside out-of-pocket expenses (including counsel fees, to fees (which counsel may be Loeb & Loeb LLP or such other counsel of the extent authorized hereunder and Escrow Agent's choosing) incurred in connection with the performance of its duties and responsibilities hereunder, which shall not (subject to Section 4.1(b)) exceed $3,000.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) business days prior written notice of resignation to the Subscriber Purchaser and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber Purchaser and Company will issue to the Escrow Agent a Joint Instruction joint instruction authorizing delivery of the Company Documents and Subscriber Documents the Escrowed Payment to a substitute Escrow Agent selected by the Subscriber Purchaser and the Company. If no successor Escrow Agent is named by the Subscriber Purchaser and the Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents the Escrowed Payment with the clerk of any such court, and/or otherwise commence an interpleader or similar action for a determination of where to deposit the same.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documentsthe Escrowed Payment, but is serving only as escrow agent, having only possession thereof. .
(f) The Escrow Agent shall not be liable for any loss resulting from action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or within the making rights or retention of any investment powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with this advice of counsel (which counsel may be Loeb & Loeb, LLP or such other counsel of the Escrow AgreementAgent's choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except to the extent any such liability arose from its own willful misconduct or gross negligence.
(fg) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(gh) The Escrow Agent shall be permitted to act as counsel for the Subscriber Purchaser or the Company, as the case may be, in any dispute as to the disposition of the Company Documents and Subscriber Documentsthe Escrowed Payment, in any other dispute between the Subscriber Purchaser and Company which is unrelated to the Escrow AgreementCompany, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and/or the Escrowed Payment and continues to act as the Escrow Agent hereunder.
(hi) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of To induce the Escrow Agent. The Escrow Agent's duties Agent to act hereunder, it is further agreed by the Company and responsibilities shall be subject to the following terms and conditionsSubscribers that:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property Escrowed Property held by Escrow Agent it hereunder any greater degree of care than Escrow Agent it gives its own similar property; property and shall not be required to invest any funds held hereunder except as may be otherwise directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(vib) 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 for any action taken or omitted by it in good faith unless a court of competent jurisdiction determines that the Escrow Agent's willful misconduct was the primary cause of any loss to the other parties to this Agreement. The Escrow Agent may consult with counsel satisfactory to Escrow Agent, the opinion of such counsel to be its own choice and shall have full and complete authorization and protection in respect of for any action taken, suffered taken or omitted by Escrow Agent it hereunder in good faith and in accordance with the opinion of such counsel.
(bd) The Subscriber Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the 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, if in good faith, that any person purporting to give notice or receipt or advice or make any statement or execute and document in connection with the provisions hereof has been duly authorized to do so.
(e) The Company acknowledge that and the Subscribers agree to indemnify the Escrow Agent is acting solely as a stakeholder at their request for, and that the Escrow Agent shall not be liable for to hold it harmless against, any action taken by Escrow Agent loss, liability or expense arising out of or in good faith connection with this Agreement and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them carrying out its duties hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreementof liability, except in those cases where the case Escrow Agent has been guilty of gross negligence or willful misconduct on 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 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. This paragraph (e) and paragraph (c) of this Section 6 shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(ef) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, Escrowed Property deposited hereunder but is serving only as escrow agentholder only. Payments of income, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting if any, from the making or retention of any investment Escrow Account shall be subject to withholding regulations then in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent force with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this AgreementUnited States taxes.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute makes no representation as to the disposition validity, value, genuineness or the collectibility of the Company Documents and Subscriber Documents, in any security or other dispute between the Subscriber and Company which is unrelated documents or instruments held by or delivered to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderit.
(h) The provisions 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) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by the Company or at any time may resign by giving written notice to such effect to the Company and the Subscribers, and, upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the Company and the Subscribers in writing, or to any court of competent jurisdiction if no such successor escrow agent is designated, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Section 4.1 shall survive the Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is thirty (30) days after the date of delivery: (A) to the Escrow Agent of the Company’s notice of termination or (B) to the Company and the Subscribers of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or any enforceable order of a court of competent jurisdiction.
(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) The Escrow Agent shall not incur any liability for following the instructions herein contained or expressly provided for or written instructions given by the parties hereto.
(l) 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 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. Additionally, in the event of any disagreement between the parties hereto resulting in adverse claims or demands being made in connection with the Escrowed Property, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property. Any court order referred to in the preceding sentence shall have been accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further question.
(m) The Company agrees to pay or reimburse the Escrow Agent upon request for all reasonable expenses, disbursements and advances, including reasonable attorney's fees, incurred or made by it in connection with the performance of this Agreement.
(n) The parties hereto irrevocably (i) submit to the jurisdiction of any Swiss court sitting in Lausanne, Switzerland in any action or proceeding arising out of or relating to this Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such Swiss court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service hereof.
(o) The duties and responsibilities of the Escrow Agent hereunder shall be determined solely by the express provisions of this Agreement, and no other or further duties or responsibilities shall be implied. The Escrow Agent shall not have any liability under, nor duty to inquire into, the terms and provisions of any agreement or instructions, other than as outlined in this Agreement.
(p) The parties acknowledge that the Escrow Agent is acting as counsel to the Company in connection with the offering referred to herein and shall have the right to continue to act in such capacity notwithstanding its appointment as Escrow Agent hereunder.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. 4.1 Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice or make any statement or execute any document in connection with the provisions hereof is so authorizedhas been duly authorized to do so; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for its reasonable outside out-of-pocket expenses (including counsel fees, to the extent authorized hereunder and ) incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents Notes and Subscriber Documents Escrowed Payment to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents Notes and Subscriber Documents Escrowed Payment with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agentSubscriber, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber or the Company, as the case may be, in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow AgreementCompany, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property Funds held by Escrow Agent it hereunder any greater degree of care than Escrow Agent it gives its own similar property; property and (vi) may consult counsel satisfactory shall not be required to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of invest any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counselfunds held hereunder.
(b) The Subscriber and Company acknowledge that the This Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement expressly sets forth exclusively all the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement by or among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, Company and NCPS shall indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent with appropriate W9 forms for tax identification number certification or nonresident alien certifications. This Section 5(f) and Section 5(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute makes no representation as to the disposition validity, value, genuineness or the collectibility of the Company Documents and Subscriber Documents, in any security or other dispute between the Subscriber and Company which is unrelated documents or instrument held by or delivered to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderit.
(h) The provisions 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 Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Section 4.1 shall survive the Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of
(i) the appointment of a successor (including a court of competent jurisdiction) or
(ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Funds until the Escrow Agent shall have received
(i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Funds or
(ii) a written agreement executed by the other party[ies] hereto directing delivery of the Funds, in which event the Escrow Agent shall disburse the Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with Clerk of the Court of ▇▇▇▇▇▇▇▇ County, State of Kentucky, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 5(c) above.
(m) The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent described herein, as set forth in numbered paragraph 6 below. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(n) No printed or other matter in any language (including, without limitation, Offerings, notices, reports and promotional materials) which mentions the Escrow Agent's name or the termination rights, powers or duties of this Agreementthe Escrow Agent shall be issued by any other party hereto or on such party's behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Escrow Agreement
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of To induce the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject Agent to act hereunder, it is further agreed by the following terms and conditionsundersigned that:
(a) The Subscriber and Company acknowledge and agree that This Escrow Agreement expressly sets forth all the duties of the Escrow Agent (i) with respect to any and all matters pertinent hereto. No implied duties or obligations shall on the part of the Escrow Agent shall be read into this Escrow Agreement. The Escrow Agent shall not be responsible for or bound by, and by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(b) The Escrow Agent shall not be required liable for any action or failure to inquire into whether either act in its capacity as Escrow Agent hereunder unless such action or failure to act shall constitute willful misconduct on the Subscriber or Company is part of the Escrow Agent, in which case there shall be no indemnification obligations.
(c) The Escrow Agent shall be entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume act in reliance upon any instrument or signature believed by it to be genuine and may assume, unless he has actual knowledge to the contrary, that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunderdo so.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation act pursuant to the Subscriber advice of counsel with respect to any matter relating to this Escrow Agreement and the Company. Prior to the effective date of the resignation as specified shall not be liable for any action taken or omitted in accordance with such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtadvice.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber DocumentsConversion Shares, Share Tranches, Transfer Agent Resolution or any other property deposited hereunder but is serving only as escrow agent, holder only and having only possession thereof, and is not charged with any duty or responsibility to determine the validity or enforceability of any such documents.
(f) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Transfer Agent Resolution and any Conversion Shares or Tranche Shares in the Escrow Agent's account to any successor Escrow Agent, jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement thereafter. The resignation of the Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Transfer Agent Resolution, the Conversion Shares and the Tranche Shares and not make delivery or disposition thereof until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(g) In the event of any disagreement among the parties hereto resulting in adverse claims or demands being made in connection with the Transfer Agent Resolution, the Conversion Shares or the Tranche Shares, or in the event that the Escrow Agent otherwise determines that the Transfer Agent Resolution, the Conversion Shares or the Tranche Shares should be retained, then the Escrow Agent may retain same until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Transfer Agent Resolution, the Conversion Shares or the Tranche Shares, or (ii) a written agreement executed by the other parties hereto directing delivery of the same, in which case the Escrow Agent shall promptly deliver the same in accordance with such order or agreement. Any court order referred to in (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 court order is final and nonappealable. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any act on such court order and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderlegal opinion without further question.
(h) The provisions This Escrow Agreement shall be binding upon and inure solely to the benefit of this Section 4.1 the parties hereto an their respective successors (including successors by way of merger) and assigns, heirs, administrators and representatives and shall survive not be enforceable by or inure to the benefit of any third party except as provided in paragraph (g) with respect to a resignation of by the Escrow Agent.
(i) Purchasers and the Company agree, jointly and severally to indemnify, defend and hold harmless the Escrow Agent from and against any and all costs (including, without limitation, legal fees and expenses), liabilities, claims and losses arising out of or in connection with this Modification Agreement or any action or failure to act by the termination of Escrow Agent under this Modification Agreement. This Modification Agreement may not be modified except in a writing signed by all the parties hereto, and no waiver hereunder shall be effective unless in a writing signed by the party to be charged.
Appears in 1 contract
Sources: Modification and Settlement Agreement (Advanced Optics Electronics Inc)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible liable for any actions taken or bound byomitted by it, or any action suffered by it to be taken or omitted by it, in good faith and in the exercise of its own best judgment, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on conclusively and shall be protected in acting or refraining from acting upon any written noticeorder, instructionnotice demand, instrumentcertificate, statementopinion or advice of counsel (including counsel chosen by the Escrow Agent), request statement , instrument , report or other paper or document furnished (not only as to it hereunder its due execution and the validity and effectiveness of its provision, but also as to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent in good faith to be genuine and to have been be signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) person. The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for bound by any action taken notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by Escrow Agent in good faith and believed by Escrow Agent a writing delivered to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any signed by the proper party or parties and, if the duties or rights of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by the Escrow Agent or any of them hereunderare affected, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in unless it shall have given its capacity as Escrow Agent under this Agreementprior written consent thereto. The Escrow Agent shall owe a duty only to not be responsible for the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse sufficiency or accuracy, the form of, or the execution validity, value or genuineness of any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred be responsible or liable in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date respect on account of the resignation as specified in such noticeidentity, authority or rights of the Subscriber and Company will issue person executing or delivering or purporting to execute or deliver any document or property paid or delivered by the Escrow Agent a Joint Instruction authorizing delivery of under the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereofprovisions hereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention which may be incurred by reason of any investment of any monies or properties which it holds hereunder. The Escrow Agent shall have the right to assume, in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties absence of written notice to the contrary from the proper person or persons, that a fact or an event by reason of which an action would or might be taken by the Escrow Agent with respect to does not exist or has not occurred, without incurring liability for any action taken or omitted, in good 24 faith and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) in the exercise of its own best judgment, in reliance upon such assumption. The Escrow Agent shall be permitted to act as indemnified and held harmless by the Company form and against any expenses, including counsel for fees and disbursements, or loss suffered by the Subscriber Escrow Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any dispute as way directly or indirectly arises out of or relates to this Agreement, the services of the Escrow Agent hereunder, the monies or other property held by it hereunder or any such expense or loss. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if a claim in respect thereof shall be made against the other parties hereto, notify such parties thereof in writing; but the failure by the Escrow Agent to give such notice shall not relieve any party form any liability which such party may have to the Escrow Agent hereunder. Upon the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow Account or it may deposit the Escrow Account with the clerk of any appropriate court or it may retain the Escrow Account pending receipt of a final, non-appealable order of a court having jurisdiction over all of the parties hereto directing to whom and under what circumstances the Escrow Account is to be disbursed and delivered. The Escrow Agent shall be entitled to reasonable compensation from the Company Documents for all services rendered by it hereunder. From time to time on and Subscriber Documentsafter the date hereof, in any other dispute between the Subscriber and Company which is unrelated shall deliver or cause to be delivered to the Escrow Agreement, whether Agent such further documents and instruments and shall do or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues cause to act be done such further acts as the Escrow Agent hereunder.
shall reasonably request (h) The provisions of this Section 4.1 shall survive the resignation of it being understood that the Escrow Agent or shall have no obligation to make such request) to carry out more effectively the termination provisions and purposes of this Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder. The Escrow Agent may resign at any time and be discharged from its duties as Escrow Agent hereunder by its giving the Company at least thirty (30) days' prior written notice thereof. As soon as practicable after its resignation, the Escrow Agent shall turn over to a successor escrow agent appointed by the Company, all monies and property held hereunder upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no new escrow agent is so appointed in the sixty (60) day period following the giving of such notice of resignation, the Escrow Agent may deposit the Escrow Account with any court it deems appropriate. The Escrow Agent shall resign and be discharged form its duties as Escrow Agent hereunder if so requested in writing at anytime by the Company, provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided above. Notwithstanding anything herein to the contrary, the Escrow Agent shall 25 not be relieved from liability thereunder for its own gross negligence or its own willful misconduct.
Appears in 1 contract
Sources: Escrow Agreement (4 Brandon I Inc)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the a. This Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement expressly sets forth exclusively all the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement by or among the parties hereto except this Escrow Agreement.
b. Escrow Agent shall have no responsibility for determining the identity or authority of the signer( s) of, or the authenticity of the signature( s) found on any document containing an escrow instruction. Company hereby warrants that all signatures found on all documents delivered to Escrow Agent in connection with an escrow, including but not limited to escrow instructions are genuine, authorized, complete and valid. Escrow Agent shall rely on that warranty in acting on escrow instructions delivered to it.
c. The Escrow Agent acts as a depositary only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of any instrument deposited under this Escrow Agreement. The Escrow Agent makes no representation whatsoever as to the compliance of the transaction with any applicable state or federal laws, regulations, or rulings. The Escrow Agent has not made, nor will make, any representation regarding the Offering or the Company. Further, the Escrow Agent shall not be responsible for any representations or warranties made by the Company or Trading Platform concerning the transaction, Company or Trading Platform. Furthermore, the Escrow Agent shall not be responsible for the application or use of any funds released from the Escrow Account pursuant to this Escrow Agreement.
d. Except as expressly provided in this Escrow Agreement, the Escrow Agent shall be entitled to act entirely on the basis of written instructions received from the Trading Platform or Company and shall have no independent duty of inquiry regarding the basis for such instructions.
e. The Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of this Escrow Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach of this Escrow Agreement, that are successfully asserted against the Escrow Agent, Company shall indemnify and hold harmless the Escrow Agent (gand any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney's fees and disbursements, arising out of and in connection with this Escrow Agreement.
f. The Escrow Agent shall be permitted entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act as counsel for in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the Subscriber in any dispute as provisions hereof, has been duly authorized to do so.
g. The Escrow Agent may act pursuant to the disposition advice of the Company Documents counsel with respect to any matter relating to this Escrow Agreement and Subscriber Documentsshall not be liable for any action taken or omitted in accordance with such advice, except for any action constituting gross negligence, willful misconduct or a breach of this Escrow Agreement.
h. The Escrow Agent is serving as escrow holder only and has no interest in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not Funds deposited hereunder. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. The Company will provide the Escrow Agent is then holding the Company Documents with appropriate W-9 forms for tax identification number certification or nonresident alien certifications. This Section S(t) and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(hSection S(c) The provisions shall survive notwithstanding any termination of this Section 4.1 shall survive Escrow Agreement or the resignation of the Escrow Agent.
i. The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other documents or instrument held by or delivered to it.
j. 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.
k. The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the termination other parties hereto or a final order of this Agreementa court of competent jurisdiction.
l. The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
▇. ▇▇ the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Funds until the Escrow Agent shall have received
i. a final non-appealable order of a court of competent jurisdiction directing delivery of the Funds or
ii. a written agreement executed by the other party[ies] hereto directing delivery of the Funds, in which event the Escrow Agent shall disburse the Funds in accordance with such order or agreement. Any court order referred to in clause (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinions without further question.
n. Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
i. That it shall be under no obligation to act, except as and to the extent directed under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
ii. That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with Clerk of the Court of ▇▇▇▇▇▇▇▇ County, State of Kentucky, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court and do hereby appoint the Clerk, of said court as their Agent for the service of all process in connection with such proceedings. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 5(c) above.
o. The Company agrees to pay the Escrow Agent as compensation for the services of the Escrow Agent described herein, as set forth in numbered paragraph 6 below. In addition, the Company agrees to pay all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel) agreed to by the parties herein.
▇. ▇▇ printed or other material in any language (including, without limitation, Offerings, notices, reports and promotional materials) which mentions the Escrow Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by any other party hereto or on such party's behalf unless the Escrow Agent shall first have given its specific written consent to such mention(s), which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Escrow Agreement (Legacyhub Hospitality Fund I Inc)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Each Interested Party acknowledges and Company acknowledge and agree agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or bound bydescribed herein (including, without limitation the Purchase Agreement), or for determining or compelling compliance therewith, and shall not otherwise be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant tobound thereby, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are expressly and specifically assumed by set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent pursuant to this Agreement; Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by the Escrow Agent it in good faith to be genuine and to have been signed or presented by the proper person person, and shall have no responsibility or party, without being required duty to make inquiry as to or to determine the authenticity or correctness of any fact stated therein or the propriety genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the service thereof; (iv) may assume that any authority of the person believed by signing or presenting the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; same, and (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agentit, including in-house counsel, and the opinion or advice of such counsel to in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives anyone for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, it hereunder except in the case of the Escrow Agent’s gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under breach of the terms of this Agreement. The In no event shall the Escrow Agent shall owe a duty only be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent has been informed of the likelihood of such loss or damage and regardless of the form of action, unless due to the Subscriber and Company under this Agreement and to no other personEscrow Agent’s willful misconduct or fraud.
(c) The Subscriber and Company jointly and severally agree to reimburse Escrow Agent shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by the Escrow Agent for reasonable outside counsel feesthan any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except to the extent authorized hereunder and incurred that such action or omission of any book-entry depository, securities intermediary or other subescrow agent was caused by the Escrow Agent’s own gross negligence or willful misconduct in connection with the performance breach of its duties and responsibilities hereunderthis Agreement.
(d) The Escrow Agent may at is hereby authorized, in making or disposing of any time resign investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as Escrow Agent hereunder by giving five (5) days prior written notice a subagent of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York or for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtthird person or dealing as principal for its own account.
(e) The Escrow Agent does not have and will not have Notwithstanding any interest term appearing in this Agreement to the Company Documents and Subscriber Documentscontrary, but is serving only as escrow agent, having only possession thereof. The Escrow Agent in no instance shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect be required or obligated to distribute any and all matters pertinent thereto and no implied duties Escrow Property (or obligations shall take other action that may be read into called for hereunder to be taken by the Escrow Agent) sooner than (i) two (2) Business Days after it has received the applicable documents required under this Agreement.
Agreement in good form, or (gii) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition passage of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether applicable time period or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation occurrence of the Escrow Agent applicable distribution date (or both (i) and (ii), as applicable under the termination terms of this Agreement), as the case may be.
Appears in 1 contract
Concerning the Escrow Agent. 4.1To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Duties Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and Responsibilities of all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent's duties and responsibilities Agent shall not be subject to bound by the following terms and conditions:provisions of any agreement among the other parties hereto except this Escrow Agreement.
(ac) The Subscriber 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, and Company acknowledge the other parties hereto shall jointly and agree that severally indemnify and hold harmless the Escrow Agent (iand any successor Escrow Agent) shall not be responsible for or bound byfrom and against any and all losses, liabilities, claims, actions, damages and shall not be required to inquire into whether either expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant toforegoing, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant 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 gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to this Agreement; any such delays.
(iiid) may rely on and The Escrow Agent shall be protected in acting or refraining from acting entitled to rely upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume that act in reliance upon any person instrument or signature believed by the Escrow Agent it in good faith to be authorized genuine and may assume, if in good faith, 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 is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counseldo so.
(be) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and that the Escrow Agent shall not be liable for any action taken by Escrow Agent or omitted in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other personaccordance with such advice.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(ef) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, Escrowed Property deposited hereunder but is serving only as escrow agent, having only possession thereofholder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of parties hereto will provide the Escrow Agent with respect to appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any and all matters pertinent thereto and no implied duties termination of this Escrow Agreement or obligations shall be read into this Agreementthe resignation of the Escrow Agent.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute makes no representation as to the disposition validity, value, genuineness or the collectibility of the Company Documents and Subscriber Documents, in any security or other dispute between the Subscriber and Company which is unrelated document or instrument held by or delivered to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderit.
(h) The provisions Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Section 4.1 shall survive the Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(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 among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed 7 Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above 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 court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent the fee set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) All parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided herein above, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, the Prospectus, notices, reports and promotional material) which mentions the Escrow Agent's name or the termination rights, powers, or duties of this Agreementthe Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and in the Prospectus.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that To induce the Escrow Agent (i) shall not be responsible for or bound byto act hereunder, and shall not be required to inquire into whether either the Subscriber or Company it is entitled to receipt of further agreed by the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Placement Agent that:
a. The Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property Escrowed Property held by Escrow Agent it hereunder any greater degree of care than Escrow Agent it gives its own similar property; property and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for required to invest any action taken by Escrow Agent funds held hereunder except as directed in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(f) b. This Escrow Agreement expressly sets forth exclusively all the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no 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 his 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 other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (gand any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
d. The Escrow Agent shall be permitted entitled to act as counsel for rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether authenticity or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.the
Appears in 1 contract
Concerning the Escrow Agent. 4.1(a) The Escrow Agent shall be paid a fee hereunder as Select Medical Escrow, the Company and the Escrow Agent shall from time to time agree in writing. Duties Select Medical Escrow and Responsibilities the Company also agree, jointly and severally, to pay on demand the reasonable costs and expenses of the Escrow Agent. The , including the reasonable fees and expenses of one outside counsel selected by the Escrow Agent's , other than the costs and expenses reimbursed pursuant to Section 4, incurred in connection with its duties and responsibilities shall be subject to the following terms and conditions:hereunder.
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, exercise the same degree of care toward the Escrowed Property as it exercises toward its own similar property and shall not be required held to inquire into whether either the Subscriber or Company is entitled any higher standard of care under this Agreement, nor be deemed to receipt of owe any fiduciary duty to Select Medical Escrow, the Company Documents and Subscriber Documents pursuant to, or any other agreement or otherwise; person.
(iib) shall be obligated only for the performance of such duties as are specifically assumed by the The Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting act upon any written notice, instruction, instrument, statement, request instrument or document furnished to it hereunder and other writing believed by the Escrow Agent it in good faith to be genuine and to have been signed or presented by the proper person or partyperson, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for to any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred party hereto in connection with the performance of its duties hereunder, except for its own gross negligence, willful misconduct or bad faith. The duties of the Escrow Agent shall be determined only with reference to this Agreement and applicable laws and the Escrow Agent is not charged with any knowledge of, or any duties or responsibilities in connection with, any other document or agreement, including but not limited to the Purchase Agreement, the Stock Purchase Agreement or the Indenture. If in doubt as to its duties and responsibilities hereunder, the Escrow Agent may consult with counsel of its choice and shall be protected in any action taken or omitted in good faith in reliance on the advice or opinion of such counsel.
(c) 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.
(d) Nothing in this Agreement shall be deemed to impose upon the Escrow Agent any duty to qualify to do business or to act as agent or otherwise in any jurisdiction other than the State of New York.
(e) The Escrow Agent may 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 Agreement, any agreement amendatory or supplemental hereto or of any certificates delivered to it hereunder.
(f) The Escrow Agent makes no representation as to the validity, value, genuineness or collectability of any security or other document or instrument held by or delivered to it.
(g) The Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder.
(h) The Escrow Agent shall have the right at any time to resign as Escrow Agent hereunder by giving five (5) days prior written notice of its resignation to Select Medical Escrow at the Subscriber and address set forth herein or at such other address as Select Medical Escrow shall provide in writing, at least 30 days prior to the Companydate specified for such resignation to take effect. Prior to Upon the effective date of the resignation as specified in such noticeresignation, the Subscriber all cash and Company will issue to other payments and all other property then held by the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents hereunder shall be delivered by it to a substitute Escrow Agent selected by the Subscriber and Companysuccessor escrow agent. If no successor Escrow Agent escrow agent is named by the Subscriber and Companyappointed, the Escrow Agent may apply to a court of competent jurisdiction for such appointment.
(i) If the Escrow Agent should at any time be confronted with inconsistent claims or demands to the Escrowed Property, the Escrow Agent shall have the right in its sole discretion to retain in its possession without liability to anyone, all or any of said Escrowed Property until such dispute shall have been settled either by the mutual written agreement of the parties involved or by a final order, decree or judgment of a court in the State United States of New York America, the time for appointment perfection of an appeal of such order, decree or judgment having expired. The Escrow Agent shall have the right, but not the duty, 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 the Escrowed Property. In the event the Escrow Agent no longer holds any Escrowed Property, it shall be released from any obligation or liability as a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk consequence of any such courtclaims or demands, except to the extent of its own gross negligence, willful misconduct or bad faith.
(ej) The Escrow Agent does shall not have and will not have any interest be required to use its own funds in the Company Documents performance of any of its obligations or duties, or in the exercise of any rights or powers, and Subscriber Documentsshall not be required to take any action which, but is serving only as escrow agentin the Escrow Agent's judgment, having only possession thereof. could involve it in expense or liability unless furnished with security and indemnity which the Escrow Agent deems to be satisfactory.
(k) The Escrow Agent shall not be liable to anyone for any action taken or omitted to be taken by it hereunder except in the case of the Escrow Agent's gross negligence, willful misconduct or bad faith. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damage or loss resulting from (including but not limited to lost profits) whatsoever, even if the making Escrow Agent has been informed of the likelihood of such loss or retention damage and regardless of any investment in accordance with this Escrow Agreementthe form of action.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(gl) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documentsis hereby authorized, in making or disposing of any other dispute between the Subscriber and Company which is unrelated to the Escrow investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more if its affiliates, whether it or not the Escrow Agent such affiliate is then holding the Company Documents and Subscriber Documents and continues to act acting as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation a subagent of the Escrow Agent or the termination of this Agreementfor any third person or dealing as principal for its own account.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Escrow Agent shall not have any liability to any of the parties to this Agreement or to any third party arising out of its services as Escrow Agent under this Agreement, except for damages directly resulting from the Escrow Agent’s gross negligence or willful misconduct.
(b) The Purchaser Representative and Company acknowledge the Seller Representative jointly and agree severally shall indemnify the Escrow Agent and hold it harmless against any loss, liability, damage or expense (including reasonable attorneys’ fees) that the Escrow Agent (i) shall not be responsible may incur as a result of acting as escrow agent under this Agreement, except for any loss, liability, damage or bound byexpense arising from its own gross negligence or willful misconduct. As between Purchaser Representative and Seller Representative, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) such obligations shall be obligated only for borne equally by Purchaser Representative and Seller Representative. For this purpose, the performance of such duties as are specifically assumed by the Escrow Agent pursuant term “attorneys’ fees” includes fees payable to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed counsel retained by the Escrow Agent in good faith connection with its services under this Agreement and, with respect to any matter arising under this Agreement as to which the Escrow Agent performs legal services, its standard hourly rates and charges then in effect.
(c) The Escrow Agent shall be genuine and entitled to have been signed rely upon any judgment, notice, instrument or presented by the proper person or party, other writing delivered to it under this Agreement without being required to determine the authenticity of, or the correctness of any fact stated therein in, that document and irrespective of any facts the Escrow Agent may know or the propriety be deemed to know in any other capacity. The Escrow Agent may act in reliance upon any instrument or validity or the service thereof; (iv) signature believed by it to be genuine and may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give any notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and has been duly authorized to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunderdo so.
(d) The Escrow Agent may at any time resign as shall have no duties or responsibilities except those expressly set forth in this Agreement. The Escrow Agent hereunder shall not have any obligations arising out of or be bound by giving five (5) days prior the provisions of any other agreement, written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such noticeor oral, including, but not limited to, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtStock Purchase Agreement.
(e) The Seller Representative acknowledges that it knows that the Escrow Agent does not have has represented the Purchaser Representative and will not have any interest certain of the Purchasers in connection with the Company Documents Stock Purchase Agreement and Subscriber Documentsthis Agreement and that it may continue to represent Purchaser Representative and the Purchasers in that connection and in connection with the transactions contemplated by those agreements, including, but is serving only as escrow agentnot limited to, having only possession thereofin connection with any disputes that may arise under either of those agreements. The Escrow Agent shall not be liable precluded from or restricted from representing the Purchaser Representative, the Purchasers or any of their respective affiliates or otherwise acting as attorneys for the Purchaser Representative, the Purchasers or any loss resulting from of their affiliates in any matter, including, but not limited to, any court proceeding or other matter related to the making Stock Purchase Agreement, this Agreement or retention the transactions contemplated by the Stock Purchase Agreement or this Agreement or the Escrow Deposit, whether or not there is a dispute between Purchaser Representative and Seller Representative with respect to any such matter; The Seller Representative irrevocably consents to any such representation and waives any conflict or appearance of conflict with respect to any investment in accordance with this Escrow Agreementsuch representation.
(f) This Agreement sets forth exclusively the duties All of the Escrow Agent Agent’s rights of indemnification provided for in this Agreement shall survive the resignation of the Escrow Agent, its replacement by a successor Escrow Agent, its delivery or deposit of the Escrow Deposit in accordance with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement, the termination of this Agreement, and any other event that occurs after this date.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as have no responsibility with respect to the disposition sufficiency of the Company Documents and Subscriber Documents, in any other dispute between arrangements contemplated by this Agreement to accomplish the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation intentions of the Escrow Agent or the termination of this AgreementParties.
Appears in 1 contract
Concerning the Escrow Agent. 4.1To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Duties Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and Responsibilities of all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent's duties and responsibilities Agent shall not be subject to bound by the following terms and conditions:provisions of any agreement among the other parties hereto except this Escrow Agreement.
(ac) The Subscriber Escrow Agent shall not be liable, except for its own negligence or willful misconduct, and, except with respect to claims based upon such negligence or willful misconduct that are successfully asserted against the Escrow Agent, and Company acknowledge the other parties hereto shall jointly and agree that severally indemnify and hold harmless the Escrow Agent (iand any successor Escrow Agent) shall not be responsible for or bound byfrom and against any and all losses, liabilities, claims, actions, damages and shall not be required to inquire into whether either expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant toforegoing, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant 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 gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to this Agreement; any such delays.
(iiid) may rely on and The Escrow Agent shall be protected in acting or refraining from acting entitled to rely upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume that act in reliance upon any person instrument or signature believed by the Escrow Agent it in good faith to be authorized genuine and may assume, if in good faith, 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 is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counseldo so.
(be) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and that the Escrow Agent shall not be liable for any action taken by Escrow Agent or omitted in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other personaccordance with such advice.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(ef) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, Escrowed Property deposited hereunder but is serving only as escrow agent, having only possession thereofholder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of parties hereto will provide the Escrow Agent with respect to appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any and all matters pertinent thereto and no implied duties termination of this Escrow Agreement or obligations shall be read into this Agreementthe resignation of the Escrow Agent.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute makes no representation as to the disposition validity, value, genuineness or the collectibility of the Company Documents and Subscriber Documents, in any security or other dispute between the Subscriber and Company which is unrelated document or instrument held by or delivered to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderit.
(h) The provisions Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Section 4.1 shall survive the Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(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 among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above 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 court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent fees determined in accordance with the terms set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) The other parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, notices, reports and promotional material) which mentions the Escrow Agent's name or the termination rights, powers, or duties of this Agreementthe Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible charged with any knowledge or responsibility for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt any of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) agreements referred to herein but shall be obligated only for the performance of such duties as are specifically assumed by the set forth in this Escrow Agent pursuant Agreement; (ii) shall not be obligated to this Agreementtake any legal or other action hereunder which might in its judgment involve expense or liability unless it shall have been furnished with indemnity acceptable to it; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person or partyperson, without being required to determine and shall have no responsibility for determining the authenticity or correctness of any fact stated therein or the propriety or validity or the service accuracy thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (viiv) may consult counsel satisfactory to Escrow Agentit, including house counsel, and the advice or opinion of such counsel to shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(b) The Subscriber and Company acknowledge that Neither the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent nor any of its directors, officers or employees shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives anyone for any action taken or omitted to be taken by Escrow Agent it or any of them hereunderits directors, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim officers or liability under this Agreement, employees hereunder except in the case of gross negligence negligence, bad faith or willful misconduct on misconduct. The Company covenants and agrees to indemnify the Escrow Agent and hold it harmless without limitation from and against any loss, liability or expense of any nature incurred by the Escrow Agent arising out of or in connection with this Escrow Agreement or with the administration of its duties hereunder, including, but not limited to, legal fees and expenses and other costs and expenses of defending or preparing to defend against any claim of liability in the premises, unless such loss, liability or expense shall be caused by the Escrow Agent's part committed in or its capacity as directors', officers' or employees' gross negligence, bad faith or willful misconduct. In no event shall the Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other personbe liable for indirect, punitive, special or consequential damages.
(c) The Subscriber and Company jointly and severally agree to reimburse Escrow Agent shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository or subescrow agent employed by the Escrow Agent for reasonable outside counsel feesthan any such book-entry depository or subescrow agent has to the Escrow Agent, except to the extent authorized that such action or omission of any book-entry depository or subescrow agent was caused by the Escrow Agent's own gross negligence, bad faith or willful misconduct.
(d) The Company agrees to pay the Escrow Agent's reasonable compensation for its normal services hereunder in accordance with the attached fee schedule, which may be subject to change on an annual basis and upon sixty (60) days' written notice. The Escrow Agent shall be entitled to reimbursement on demand for all expenses incurred in connection with the performance administration 4 of the escrow created hereby which are in excess of its duties compensation for normal services hereunder, including without limitation, payment of any legal fees and responsibilities expenses incurred by the Escrow Agent in connection with the resolution of any claim by any party hereunder.
(de) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five thirty (530) days prior written notice of resignation to the Subscriber and the Companyother parties hereto. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction written instruction authorizing delivery redelivery of the Company Documents and Subscriber Documents Subscription Funds to a substitute successor escrow agent that it selects subject to the reasonable consent of the Subscription Agent. Such successor escrow agent shall be a bank or trust company, organized and existing under the laws of the United States or any state thereof, subject to examination by state or federal authorities, and have capital and surplus in excess of $50,000,000. If, however, the Company shall fail to name a successor escrow agent within twenty (20) days after the notice of resignation from the Escrow Agent, the Subscription Agent selected by the Subscriber and Companyshall be entitled to name such successor escrow agent. If no successor Escrow Agent escrow agent is named by the Subscriber and CompanyCompany or the Subscription Agent, the Escrow Agent may apply to a court of competent jurisdiction in for the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of paragraphs (b) and (c) of this Section 4.1 6 and Section 14 shall survive the resignation or removal of the Escrow Agent or the termination of this Escrow Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Duties Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and Responsibilities of all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(d) The Escrow Agent shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume that act in reliance upon any person instrument or signature believed by the Escrow Agent it in good faith to be authorized genuine and may assume, if in good faith, 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 is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counseldo so.
(be) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and that the Escrow Agent shall not be liable for any action taken by Escrow Agent or omitted in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other personaccordance with such advice.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(ef) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, Escrowed Property deposited hereunder but is serving only as escrow agent, having only possession thereofholder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of parties hereto will provide the Escrow Agent with respect to appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any and all matters pertinent thereto and no implied duties termination of this Escrow Agreement or obligations shall be read into this Agreementthe resignation of the Escrow Agent.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute makes no representation as to the disposition validity, value, genuineness or the collectibility of the Company Documents and Subscriber Documents, in any security or other dispute between the Subscriber and Company which is unrelated document or instrument held by or delivered to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderit.
(h) The provisions Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Section 4.1 shall survive the Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(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 among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the 5
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent fees determined in accordance with the terms set forth on Exhibit F hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) The other parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, notices, reports and promotional material) which mentions the Escrow Agent's name or the termination rights, powers, or duties of this Agreementthe Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Escrow Agent and Company the Issuer acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) Escrowed Funds shall be obligated only for the performance of such duties as are specifically assumed held by the Escrow Agent pursuant to this Agreement; (iii) may rely for and on behalf of the Issuer, and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by that the Escrow Agent in good faith to be genuine is acting exclusively as the agent, custodian and to have been signed or presented by bailee of the proper person or partyIssuer, without being required to determine the authenticity or correctness and not of any fact stated therein or the propriety or validity or the service thereofother party; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agentprovided, however, the opinion Initial Purchasers and the Trustee are each third party beneficiaries of such counsel to be this Escrow Agreement with full and complete authorization and protection in respect rights of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counselenforcement.
(b) The Subscriber Escrow Agent shall exercise the same degree of care toward the Escrowed Funds as it exercises toward its own similar property.
(c) The Escrow Agent may execute any of its powers or responsibilities hereunder and Company acknowledge that exercise any rights hereunder either directly or by or through its agents or attorneys. The Escrow Agent shall have the right, but not the obligation to consult with counsel and/or other such professionals of the Escrow Agent is acting solely as a stakeholder at their request Agent’s choice and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by the Escrow Agent in accordance with the advice of such counsel or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementsuch professionals. The Escrow Agent shall owe a duty only be entitled to the Subscriber reimbursement for any and Company under this Agreement and to no other person.
all compensation (c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, expenses, and other costs) paid to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereundersuch counsel and/or professional.
(d) Nothing in this Escrow Agreement shall be deemed to impose upon the Escrow Agent any duty to qualify to do business or to act as agent or otherwise in any jurisdiction other than the State of New York.
(e) The Escrow Agent may shall have the right at any time to resign as Escrow Agent hereunder by giving five (5) days prior written notice of its resignation to the Subscriber and Issuer at the Companyaddress set forth herein or at such other address as the Issuer shall provide, at least 30 days prior to the date specified for such resignation to take effect. Prior to Upon the effective date of the resignation as specified in such noticeresignation, the Subscriber all cash and Company will issue to other payments and all other property then held by the Escrow Agent hereunder shall be delivered by it to a Joint Instruction authorizing delivery successor Escrow Agent appointed by the Issuer with the consent of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and CompanyInitial Purchasers. If no successor Escrow Agent is named by the Subscriber and Companyappointed, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a such appointment. The successor Escrow Agent, and Agent is not required to deposit be the Company Documents and Subscriber Documents with same entity as the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in Trustee under the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow AgreementIndenture.
(f) This Agreement sets forth exclusively In the duties event that any Escrowed Funds shall be attached, garnished or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by an order of a court, or any order, judgment or decree shall be made or entered by any court order affecting the property deposited under this Escrow Agreement, the Escrow Agent is hereby authorized, in its sole discretion, to obey and comply with respect all writs, orders or decrees so entered or issued, and in the event that the Escrow Agent obeys or complies with any such writ, order or decree it shall not be liable to the Issuer or to any and all matters pertinent thereto and no implied duties other person, firm or obligations shall corporation, by reason of such compliance notwithstanding that such writ, order or decree be read into this Agreementsubsequently reversed, modified, annulled, set aside or vacated.
(g) The In the event that the Escrow Agent should at any time be confronted with inconsistent claims or demands with respect to the Escrowed Funds, the Escrow Agent shall be permitted have the right, but not the duty, to act as counsel for interplead the Subscriber Escrowed Funds and/or the parties making such requests or demands in any dispute as court of competent jurisdiction and request that such court determine the respective rights of the parties with respect to the disposition of Escrowed Funds. In the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not event the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act no longer holds any Escrowed Funds, it shall be released from any obligation or liability as the Escrow Agent hereundera consequence of any such claims or demands.
(h) The provisions All references in this Escrow Agreement to any other agreement are for the convenience of this Section 4.1 shall survive the resignation of Issuer, and the Escrow Agent has no duties or obligations with respect thereto.
(i) No provision of this Escrow Agreement shall require the Escrow Agent to risk or advance its own funds or otherwise incur any financial liability in the performance of its duties or the termination exercise of its rights under this Escrow Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible entitled to receive such fees as are reasonable and customary as compensation for or bound byits services hereunder, and shall not be required to inquire into whether either the Subscriber reimbursed for all reasonable expenses, disbursements, and advances incurred or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed made by the Escrow Agent in good faith to performance of its duties hereunder. Such fee and reimbursements shall be genuine paid one-half by Buyer and to have been signed or presented one-half by the proper person or partySellers, without being required as per the Fee Schedule (the "Fee Schedule") attached hereto as Annex B other than (i) those fees set forth in Section 3 of such Fee Schedule, which will be borne solely by Sellers, except in the case of fees for wire transfers made pursuant to determine Section 3 of this Escrow Agreement, which will be borne one-half by Buyer and one-half by Sellers, and (ii) the authenticity or correctness of any fact stated therein or Acceptance Fee specified in the propriety or validity or the service thereof; (iv) may assume that any person believed Fee Schedule, which shall be paid immediately by the Sellers following the deposit of funds pursuant to Section 1 of this Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counselAgreement.
(b) The Subscriber Escrow Agent may resign and Company acknowledge that be discharged from its duties hereunder at any time by giving notice of such resignation to Buyer and the Sellers specifying a date when such resignation shall take effect. Upon such notice, a successor Escrow Agent shall be appointed with the consent of Buyer and the Sellers, such successor Escrow Agent to become Escrow Agent hereunder upon the resignation date specified in such notice. If Buyer and the Sellers are unable to agree upon a successor Escrow Agent within 30 days after such notice, the Escrow Agent is acting solely as shall be entitled to apply to a stakeholder court of competent jurisdiction for the appointment of a successor escrow agent, with any expenses to be shared equally by the Buyer on the one hand and the Sellers on the other hand. The Escrow Agent shall continue to serve until its successor accepts the terms of the escrow and receives the Escrow Fund. Buyer and the Sellers hereto shall have the right at any time upon their request mutual consent to substitute a new Escrow Agent by giving notice thereof to the Escrow Agent then acting.
(c) With the exception of Section 2.3 and that Article X of the Agreement and the related definitions, the Escrow Agent shall not be charged with knowledge of the Agreement.
(d) The Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent it in good faith and believed by Escrow Agent it to be authorized hereby or within the rights or powers power conferred upon Escrow Agent by this Agreement. The Subscriber and Companyit hereunder, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives nor for any action taken or omitted to by it in good faith, and in accordance with advice of counsel (which counsel may be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agentown choosing), and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making mistake or retention fact or error of judgment or for any acts or omissions of any investment in accordance with this Escrow Agreementkind unless attributable solely to its willful misconduct or gross negligence.
(fe) This Agreement sets forth exclusively the duties of Each party hereto agrees to indemnify the Escrow Agent with respect to and hold it harmless against any and all matters pertinent thereto liabilities incurred by it hereunder as a consequence of such party's action, and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted the parties agree jointly and severally to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not indemnify the Escrow Agent is then holding the Company Documents and Subscriber Documents hold it harmless against any and continues to act as all liabilities incurred by it hereunder that are not a consequence of any party's action, except in 9 either case for liabilities incurred by the Escrow Agent hereunderresulting solely from its own willful misconduct or gross negligence.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Sources: Indemnity Escrow Agreement (Beckman Instruments Inc)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible liable for any actions taken or bound byomitted by it, or any action suffered by it to be taken or omitted by it, in good faith and in the exercise of its own best judgment, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on conclusively and shall be protected in acting or refraining from acting upon any written noticeorder, instructionnotice demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, statement, request report or other paper or document furnished (not only as to it hereunder its due execution and the validity and effectiveness of its provision, but also as to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent in good faith to be genuine and to have been be signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) person. The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for bound by any action taken notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by Escrow Agent in good faith and believed by Escrow Agent a writing delivered to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any signed by the proper Party or Parties and, if the duties or rights of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by the Escrow Agent or any of them hereunderare affected, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in unless it shall have given its capacity as Escrow Agent under this Agreementprior written consent thereto. The Escrow Agent shall owe a duty only to not be responsible for the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse sufficiency or accuracy, the form of, or the execution validity, value or genuineness of any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred be responsible or liable in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date respect on account of the resignation as specified in such noticeidentity, authority or rights of the Subscriber and Company will issue person executing or delivering or purporting to execute or deliver any document or property paid or delivered by the Escrow Agent a Joint Instruction authorizing delivery of under the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereofprovisions hereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention which may be incurred by reason of any investment of any moneys or properties which it holds hereunder. The Escrow Agent shall have the right to assume, in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties absence of written notice to the contrary from the proper person or persons, that a fact or an event by reason of which an action would or might be taken by the Escrow Agent with respect to does not exist or has not occurred, without incurring liability for any action taken or omitted, in good faith and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) in the exercise of its own best judgment, in reliance upon such assumption. The Escrow Agent shall be permitted to act as indemnified and held harmless by the Company from and against any expenses, including counsel for fees and disbursements, or loss suffered by the Subscriber Escrow Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any dispute as way directly or indirectly arises out of or relates to this Agreement, the services of the Escrow Agent hereunder, the moneys or other property held by it hereunder or any such expense or loss. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if a claim in respect thereof shall be made against the other Parties, notify such Parties in writing; but the failure by the Escrow Agent to give such notice shall not relieve any Party form any liability which such Party may have to the Escrow Agent hereunder. Upon the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow Account or it may deposit the Escrow Account with the clerk of any appropriate court or it may retain the Escrow Account pending receipt of a final, non-appealable order of a court having jurisdiction over all of the Parties directing to whom and under what circumstances the Escrow Account is to be disbursed and delivered. The Escrow Agent shall be entitled to reasonable compensation from the Company Documents for all services rendered by it hereunder. From time to time on and Subscriber Documentsafter the date hereof, in any other dispute between the Subscriber and Company which is unrelated shall deliver or cause to be delivered to the Escrow Agreement, whether Agent such further documents and instruments and shall do or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues cause to act be done such further acts as the Escrow Agent hereunder.
shall reasonably request (h) The provisions of this Section 4.1 shall survive the resignation of it being understood that the Escrow Agent or shall have no obligation to make such request) to carry out more effectively the termination provisions and purposes of this Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder. The Escrow Agent may resign at any time and be discharged from its duties as Escrow Agent hereunder by its giving the Company at least thirty (30) days' prior written notice thereof. As soon as practicable after its resignation, the Escrow Agent shall turn over to a successor escrow agent appointed by the Company, all moneys and property held hereunder upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no new escrow agent is so appointed in the sixty (60) day period following the giving of such notice of resignation, the Escrow Agent may deposit the Escrow Account with any court it deems appropriate. The Escrow Agent shall resign and be discharged form its duties as Escrow Agent hereunder if so requested in writing at any time by the Company, provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided above. Notwithstanding anything herein to the contrary, the Escrow Agent shall not be relieved from liability thereunder for its own gross negligence or its own willful misconduct.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of (i) Notwithstanding any provision contained herein to the contrary, the Escrow Agent. The Escrow Agent's duties , including ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP’s officers, directors, employees and responsibilities shall be subject to the following terms and conditionsagents, will:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by or omitted under this Escrow Agent Agreement so long as he has acted in good faith and believed by Escrow Agent without gross negligence or willful misconduct;
(ii) have no responsibility to inquire into or determine the genuineness, authenticity, or sufficiency of any securities, checks, or other documents or instruments submitted to it in connection with its duties hereunder;
(iii) be entitled to deem the signatories of any documents or instruments submitted to it hereunder as being those purported to be authorized to sign such documents or within instruments on behalf of the rights parties hereto, and will be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and without requiring substantiating evidence of any kind;
(iv) [Reserved];
(v) be indemnified and saved harmless by the Parties from any and all losses, liabilities, claims, proceedings, suits, demands, penalties, costs and expenses, including without limitation reasonable fees and expenses of outside counsel and experts and their staffs and all reasonable expenses of document location, duplication and shipment and of preparation to defend any of the foregoing (“Losses”), which may be incurred by it as a result of its execution, delivery or powers conferred upon performance of this Escrow Agent Agreement, unless such Losses are caused by the bad faith, gross negligence or willful misconduct of the Escrow Agent, and the provisions of this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless Section 4(a)(v) will survive the resignation or removal of the Escrow Agent and the termination of this Escrow Agreement;
(vi) have only those duties as are specifically provided herein, which will be deemed purely ministerial in nature, and will under no circumstance be deemed a fiduciary for any of the other Parties. The Escrow Agent's partnersAgent will neither be responsible for, employeesnor chargeable with, agents knowledge of the terms and representatives conditions of any other agreement, instrument or document between the other parties hereto, in connection herewith, including without limitation the Agreements. This Escrow Agreement sets forth all matters pertinent to the Escrowed Document contemplated hereunder, and no additional obligations of the Escrow Agent will be inferred from the terms of this Escrow Agreement or any other Agreement. IN NO EVENT WILL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION;
(vii) have the right, but not the obligation, to consult with and retain counsel of its choice with respect to matters (including but not limited to litigation) arising out of this Escrow Agreement and will not be liable for any action taken or omitted to be taken by Escrow Agent or any in good faith in accordance with the advice of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.such counsel; and
(cviii) The Subscriber and Company jointly and severally agree have the right to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance perform any of its duties and responsibilities hereunderhereunder through agents, attorneys, custodians or nominees.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and Responsibilities of no implied duties or obligations shall be read into this Agreement against the Escrow Agent. Escrow Agent agrees to release any property held by it hereunder (the “Escrowed Property”) in accordance with the terms and conditions set forth in this Agreement.
(b) The Escrow Agent's duties Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, may assume the validity and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for accuracy of any statement or bound byassertion contained in such a writing or instrument, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice any writing, notice, advice or make any statement or execute any document instructions in connection with the provisions hereof is so authorized; (v) has been duly authorized to do so. The Escrow Agent shall not be under liable in any duty manner for the sufficiency or correctness as to give form, manner, and execution, or validity of any instrument deposited in this escrow, nor as to the property held identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the safekeeping of the Escrowed Property, and for the disposition of the same in accordance with this Agreement. Escrow Agent shall not be deemed to have knowledge of any matter or thing unless and until Escrow Agent has actually received written notice of such matter or thing and Escrow Agent shall not be charged with any constructive notice whatsoever.
(c) Escrow Agent shall hold in escrow, pursuant to this Agreement, the Escrowed Property actually delivered and received by Escrow Agent hereunder any greater degree of care than hereunder, but Escrow Agent gives its own similar property; shall not be obligated to ascertain the existence of (or initiate recovery of) any other property that may be part or portion of the Collateral, or to become or remain informed with respect to the possibility or probability of additional Collateral being realized upon or collected at any time in the future, or to inform any parties to this Agreement or any third party with respect to the nature and extent of any Collateral realized and received by Escrow Agent (viexcept upon the written request of such party), or to monitor current market values of the Collateral. Further, Escrow Agent shall not be obligated to proceed with any action or inaction based on information with respect to market values of the Collateral which Escrow Agent may in any manner learn, nor shall Escrow Agent be obligated to inform the parties hereto or any third party with respect to market values of any of the Collateral at any time, Escrow Agent having no duties with respect to investment management or information, all parties hereto understanding and intending that Escrow Agent’s responsibilities are purely ministerial in nature. Any reduction in the market value or other value of the Collateral while deposited with Escrow Agent shall be at the sole risk of Pledgor and Secured Party. If all or any portion of the Escrowed Property is in the form of a check or in any other form other than cash, Escrow Agent shall deposit same as required but shall not be liable for the nonpayment thereof, nor responsible to enforce collection thereof.
(d) In the event instructions from Secured Party, Pledgor, or any other Person would require Escrow Agent to expend any monies or to incur any cost, Escrow Agent shall be entitled to refrain from taking any action until it receives payment for such costs. It is agreed that the duties of Escrow Agent are purely ministerial in nature and shall be expressly limited to the safekeeping of the Escrowed Property and for the disposition of same in accordance with this Agreement. Secured Party and the Pledgor, jointly and severally, each hereby indemnifies Escrow Agent and holds it harmless from and against any and all claims, liabilities, damages, costs, penalties, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees or charges of any character or nature (collectively, the “Claims”), which it may consult counsel satisfactory incur or with which it may be threatened, directly or indirectly, arising from or in any way connected with this Agreement or which may result from Escrow Agent’s following of instructions from Secured Party and the Pledgor, and in connection therewith, indemnifies Escrow Agent against any and all expenses, including attorneys’ fees and the cost of defending any action, suit, or proceeding or resisting any Claim, whether or not litigation is instituted, unless any such Claims arise as a result of Escrow Agent’s gross negligence or willful misconduct. Escrow Agent shall be vested with a lien on all Escrowed Property under the terms of this Agreement, for indemnification, attorneys’ fees, court costs and all other costs and expenses arising from any suit, interpleader or otherwise, or other expenses, fees or charges of any character or nature, which may be incurred by Escrow Agent by reason of disputes arising between Pledgor and the Secured Party, or any third party as to the correct interpretation of this Agreement, and instructions given to Escrow Agent hereunder, or otherwise, with the right of Escrow Agent, regardless of the opinion instruments aforesaid and without the necessity of instituting any action, suit or proceeding, to hold any property hereunder until and unless said additional expenses, fees and charges shall be fully paid. Any fees and costs charged by the Escrow Agent for serving hereunder shall be paid by the Pledgor.
(e) In the event Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from Secured Party and Pledgor or from third persons with respect to the Escrowed Property, which, in Escrow Agent’s sole opinion, are in conflict with each other or with any provision of this Agreement, Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise in writing by Pledgor and Secured Party and said third persons, if any, or by a final order or judgment of a court of competent jurisdiction. If any of the parties shall be in disagreement about the interpretation of this Agreement, or about the rights and obligations, or the propriety of any action contemplated by the Escrow Agent hereunder, the Escrow Agent may, at its sole discretion, deposit the Escrowed Property with a court having jurisdiction over this Agreement, and, upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully cease and terminate. The Escrow Agent shall be indemnified by the Pledgor and Secured Party for all costs, including reasonable attorneys’ fees, in connection with the aforesaid proceeding, and shall be fully protected in suspending all or a part of its activities under this Agreement until a final decision or other settlement in the proceeding is received. In the event Escrow Agent is joined as a party to a lawsuit by virtue of the fact that it is holding the Escrowed Property, Escrow Agent shall, at its sole option, either: (i) tender the Collateral in its possession to the registry of the appropriate court; or (ii) disburse the Collateral in its possession in accordance with the court’s ultimate disposition of the case, and Secured Party and Pledgor hereby, jointly and severally, indemnify and hold Escrow Agent harmless from and against any damages or losses in connection therewith including, but not limited to, reasonable attorneys’ fees and court costs at all trial and appellate levels.
(f) The Escrow Agent may consult with counsel of its own choice (and the costs of such counsel to shall be paid by the Pledgor and Secured Party, jointly and severally) and shall have full and complete authorization and protection in respect of for any action taken, taken or suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making mistakes of fact or retention error of judgment, or for any actions or omissions of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties kind, unless caused by its willful misconduct or obligations shall be read into this Agreementgross negligence.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as may resign upon ten (10) days’ written notice to the disposition of the Company Documents parties in this Agreement. If a successor Escrow Agent is not appointed by Secured Party and Subscriber DocumentsPledgor within this ten (10) day period, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues may petition a court of competent jurisdiction to act as the Escrow Agent hereundername a successor.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Sources: Pledge and Escrow Agreement (Inventergy Global, Inc.)
Concerning the Escrow Agent. 4.13.01 The Escrow Agent shall be entitled to reasonable compensation for its services hereunder and shall be reimbursed for all reasonable expenses, disbursements and advances (including reasonable attorneys' fees and expenses) incurred or made by it in performance of its duties hereunder. Duties The Buyer, on the one hand, and Responsibilities the Seller and the Shareholders, on the other hand, shall each promptly pay one-half (1/2) of the amounts described in the preceding sentence upon receipt of a reasonably detailed itemized statement from the Escrow Agent.
3.02 The Escrow Agent may resign and be discharged from its further duties hereunder at any time by giving written notice of such resignation to the Buyer, the Seller and the Shareholders specifying a date (not less than thirty days after the giving of such notice) when such resignation shall take effect. Promptly after the receipt of such notice, a successor escrow agent, which shall be a bank or trust company having capital and surplus of at least $50,000,000, shall be appointed by mutual agreement of the Buyer, the Seller and the Shareholders. If the Buyer, the Seller and the Shareholders are unable to agree upon a successor escrow agent within thirty days after such notice, the Escrow Agent shall be entitled to appoint its successor. The Escrow Agent's duties Agent shall continue to serve until its successor accepts the escrow and responsibilities shall be subject receives the Collateral. The Buyer, on the one hand, and the Seller and the Shareholders, on the other hand, may agree at any time to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that substitute a new escrow agent by giving written notice thereof to the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required then acting.
3.03 The Escrow Agent undertakes to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of perform such duties as are specifically assumed by the set forth herein. The Escrow Agent pursuant acting or refraining from acting in good faith shall not be liable for any mistake of fact or error in judgment by it or for any acts or omissions by it of any kind, unless caused by willful misconduct or gross negligence, and shall be entitled to this Agreement; (iii) may rely on rely, and shall be protected in acting or refraining from acting doing so, upon (i) any written notice, instruction, instrument, statement, request instrument or document furnished to it hereunder and signature believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person party or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be parties duly authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; do so, and (viii) the advice of counsel (which may consult counsel satisfactory to Escrow Agent, be that of the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementchoosing). The Escrow Agent shall owe a duty only have no responsibility 63 EXHIBIT D for the contents of any writing submitted to it hereunder and shall be entitled in good faith to rely without liability upon the Subscriber and Company under this Agreement and to no other personcontents thereof.
(c) 3.04 The Subscriber Buyer, on the one hand, and Company jointly the Seller and severally the Shareholders, on the other hand, agree to reimburse indemnify the Escrow Agent for reasonable outside counsel feesand hold it harmless against any and all liabilities incurred by it hereunder as a consequence of their respective action, and each further agrees jointly to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to indemnify the Escrow Agent a Joint Instruction authorizing delivery and hold it harmless against any and all liabilities incurred by it hereunder which are not the consequence of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected their respective action, except, in either case for liabilities incurred by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereofresulting from its own willful misconduct or gross negligence. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets indemnity provisions set forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 herein shall survive the resignation of the Escrow Agent or the any termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1(a) The duties and responsibilities of Escrow Agent shall be limited to those expressly set forth in this Founders' Escrow Agreement and the Acceptance of Escrow, the form of which is attached hereto as Exhibit A (the "Acceptance of Escrow"). Duties With the exception of this Agreement and Responsibilities the Acceptance of Escrow, the Escrow Agent is not responsible for, or chargeable with knowledge of, any terms or provisions contained in any underlying agreement referred to in this Agreement or any other separate agreements and understandings between the parties. The Escrow Agent shall not be liable for the accuracy of any calculations or the sufficiency of funds for any purpose.
(b) The Escrow Agent shall not be liable to anyone whatsoever by reason of any error or judgment or for any act done or step taken or omitted by it in good faith or for any mistake of fact or law or for anything which it may do or refrain from doing in connection herewith unless caused by or arising out of its own gross negligence or willful misconduct. SYS and the Founder shall, jointly and severally, indemnify and hold the Escrow Agent harmless from any and all liability and expenses (including, without limitation, its attorney's fees and expenses of litigation) which may arise out of or result from this Founders' Escrow Agreement or any action taken or omitted to be taken by it as Escrow Agent in accordance with this Founders' Escrow Agreement, as the same may be amended, modified or supplemented, except with respect to any such liability and expense as may result from the gross negligence or willful misconduct of the Escrow Agent. .
(c) The Escrow Agent's duties and responsibilities Agent shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting in reliance upon any written noticeinstructions or directions furnished to it in writing jointly by SYS and the Founder or pursuant to any provision of this Founders' Escrow Agreement and shall be entitled to treat as genuine, instructionand as the document it purports to be, instrumentany letter, statement, request paper or other document furnished to it hereunder by SYS or the Founders and reasonably believed by the Escrow Agent in good faith it to be genuine and to have been signed or and presented by the proper person party or partyparties.
(d) The Escrow Agent, without being required or any successor to determine it hereafter appointed, may at any time resign by giving a Notice to SYS and the authenticity Founder and shall be discharged from its duties hereunder upon the appointment of a successor Escrow Agent as hereinafter provided or correctness upon the expiration of thirty (30) days after such Notice is given. In the event of any fact stated therein such resignation, a successor Escrow Agent, which shall be a bank or trust company organized under the propriety laws of the State of California and having a combined capital and surplus of not less than $10,000,000, shall be jointly appointed by SYS and the Founder. Any such successor Escrow Agent shall deliver to SYS and the Founder a written instrument accepting such appointment hereunder, and thereupon it shall succeed to all the rights and duties of the Escrow Agent hereunder and shall be entitled to receive the Escrow Amount held by the predecessor Escrow Agent hereunder.
(e) The Escrow Agent may consult with counsel to be selected and employed by it and shall be fully protected with respect to any action under this Founders' Escrow Agreement taken or validity or the service thereof; (iv) may assume that any person believed suffered in good faith by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall receive compensation for its services at its customary rates as in effect from time to time. Such compensation, along with any other fees or expenses and related disbursements incurred by the Escrow Agent in carrying out its obligations hereunder prior to such date, shall be permitted to act paid 50% by the Founder as counsel for the Subscriber set forth in any dispute as Section 4 above; and 50% by SYS; provided, to the disposition extent the Escrow Amount is insufficient to pay the Founder's share of the Company Documents and Subscriber DocumentsEscrow Agent's compensation, in any other dispute between fees, expenses or related disbursements hereunder, the Subscriber and Company which is unrelated Founder shall pay such amount to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderAgent.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Sys)
Concerning the Escrow Agent. 4.1. Duties Buyer, on the one hand, and Responsibilities Sellers, on the other, will pay or have an affiliate pay the Escrow Agent upon execution of the Escrow AgentAgreement a $1,500 Acceptance Fee and annual fees of $2,000 if all investments are in money market funds (or $6,000 if otherwise invested in Qualified Investments) for the services to be rendered hereunder and to pay or reimburse the Escrow Agent upon request for all reasonable expenses, disbursements and advances incurred or made by it in connection with carrying out its duties hereunder, including, without limitation, trading commissions and fees and reasonable attorney’s fees and expenses. The Escrow Agent's duties and responsibilities shall ’s annual fee will not be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that pro-rated for any portion of a year the Escrow Agent (i) shall not Agreement exists. Buyer and Seller will each be responsible for or bound by, and shall not be required 50% of amounts payable to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iiiSection 7(a) may rely on unless otherwise agreed by Buyer and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counselSeller’s Representative.
(ba) The Subscriber Other than as provided in paragraph 7(a), Sellers’ Representative, on behalf of Sellers, and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, Buyer will jointly and severally, agree to severally indemnify and hold harmless the Escrow Agent and each director, employee, attorney, agent and affiliate of the Escrow Agent for, and hold it harmless against, any loss, liability or expense incurred without gross negligence or willful misconduct or bad faith on the part of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by the Escrow Agent or any breach by the Escrow Agent of them the terms of this Escrow Agreement, arising out of or in connection with its entering into this Escrow Agreement and carrying out its duties hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreementof liability. Notwithstanding the foregoing, except in as between Sellers’ Representative, on behalf of Sellers, and Buyer, any indemnity to be paid to the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementpursuant to the preceding sentence will be borne 50% by Buyer and 50% by Sellers’ Representative, on behalf of Sellers severally and not jointly. Escrow Agent may deduct from the Escrow Fund any such expenses, costs, disbursements or advances described in Section 7(a) or 7(b).
(b) The Escrow Agent shall owe will prepare and deliver to Buyer and Sellers’ Representative within ten business days after the end of each calendar month prior to termination of this Escrow Agreement a duty only written account describing all transactions with respect to the Subscriber and Company under this Agreement and to no other personEscrow Accounts during such calendar month.
(c) The Subscriber duties and Company jointly and severally agree to reimburse responsibilities of the Escrow Agent for reasonable outside counsel feesunder this Agreement will be determined solely by the express provisions of this Escrow Agreement, to the extent authorized hereunder and incurred in connection with the performance of its no other or further duties and or responsibilities hereunderwill be implied.
(d) The Escrow Agent may at act upon any time resign as Escrow Agent hereunder instrument or other writing provided by giving five (5) days prior written notice a duly authorized officer of resignation to the Subscriber and the Company. Prior to the effective date any of the resignation as specified parties hereto, believed by it in such notice, the Subscriber and Company will issue good faith to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agentbe genuine, and to deposit be signed or presented by the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have proper person, and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable in connection with the performance by it of its duties pursuant to the provisions of this Escrow Agreement, except for any loss resulting from its own willful misconduct, gross negligence or breach by it of the making or retention express terms of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Escrow Agent shall be paid a fee of [_____] (the "Escrow Fee") for its services hereunder and shall be reimbursed for all reasonable expenses, disbursements and advances incurred or made by it in the performance of its duties hereunder, including reasonable attorneys fees. The Escrow Fee shall be paid half by Parent and half by the Variable Company Stakeholders. The Escrow Agent shall deduct the Variable Company Stakeholders' portion of the Escrow Fee from the Escrowed Amount. Parent shall pay, on the date of the execution and delivery of this Agreement, its portion of the Escrow Fee by check drawn on Parent's corporate bank account.
(b) Parent, the Company, Merger Sub and each of the Variable Company Stakeholders hereby acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt any of the Company Documents and Subscriber Documents pursuant toagreements referred to herein (including, any other agreement or otherwise; (iiwithout limitation, the Merger Agreement) but shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to set forth in this Agreement; (ii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve expense or liability unless it shall have been furnished with indemnity acceptable to it; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person or partyperson, without being required to determine and shall have no responsibility for determining the authenticity or correctness of any fact stated therein or the propriety or validity or the service accuracy thereof; and (iv) may assume that any person believed by consult reputable legal counsel, including house counsel, and the Escrow Agent in good faith to be authorized to give notice advice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(bc) The Subscriber and Company acknowledge that Neither the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent nor any of its directors, officers or employees shall not 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, bad faith or willful misconduct. Parent, the Company, Merger Sub and each of the Variable Company Stakeholders, jointly and severally, covenant and agree to indemnify the Escrow Agent and hold it harmless without limitation from and against any loss, liability or expense of any nature incurred by the Escrow Agent arising out of or in connection with this Agreement or with the administration of its duties hereunder, including, but not limited to, legal fees and expenses and other costs and expenses of defending or preparing to defend against any claim of liability in the premises, unless such loss, liability or expense shall be caused by the Escrow Agent's gross negligence, bad faith or willful misconduct. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damages.
(d) Parent, the Company, Merger Sub and each of the Variable Company Stakeholders, jointly and severally, agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of the Escrowed Amount 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. Parent, the Company, Merger Sub and each of the Variable Company Stakeholders undertake to instruct the Escrow Agent in good faith writing with respect to the Escrow Agent's responsibility for withholding and believed by other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by under this Agreement. The Subscriber Parent, the Company, Merger Sub and Companyeach of the Variable Company Stakeholders, jointly and severally, agree to indemnify and hold harmless 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 the same, and any of Escrow Agent's partnersliability for failure to obtain proper certifications or to properly report to governmental authorities, employees, agents and representatives for any action taken or omitted to be taken by which the Escrow Agent may be or any become subject in connection with or which arises out of them hereunderthis Agreement, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement(including reasonable legal fees and expenses), except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. interest and penalties.
(e) The Escrow Agent shall owe a duty only have no more or less responsibility or liability on account of any action or omission of any book-entry depository or subescrow agent employed by the Escrow Agent than any such book-entry depository or subescrow agent has to the Subscriber and Company under this Agreement and Escrow Agent, except to no other personthe extent that such action or omission of any book-entry depository or subescrow agent was caused by the Escrow Agent's own gross negligence, bad faith or willful misconduct.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(df) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five thirty (530) days prior written notice of resignation to the Subscriber and the Companyother parties hereto. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company Parent will issue to the Escrow Agent a Joint Instruction written instruction authorizing delivery redelivery of the Company Documents and Subscriber Documents Escrow Amount to a substitute successor escrow agent that it selects subject to the reasonable consent of each of the Stakeholder Agents. Such successor escrow agent shall be a bank or trust company, organized and existing under the laws of the United States or any state thereof, subject to examination by state or federal authorities, and have capital and surplus in excess of $500,000,000. If, however, Parent fails to name a successor escrow agent within twenty (20) days after the notice of resignation from the Escrow Agent selected by Agent, the Subscriber and CompanyStakeholder Agents shall be entitled to name such successor escrow agent. If no successor Escrow Agent escrow agent is named by Parent or the Subscriber and CompanyStakeholder Agents, the Escrow Agent may apply to a court of competent jurisdiction in for the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 paragraph (c) and (d) shall survive the resignation or removal of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that Escrow Agent shall not be bound in any way by any agreement or contract between the parties hereto to which the Escrow Agent is not a party (i) shall whether or not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iiihas knowledge thereof) may rely on and shall be protected in acting the only duties or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by responsibilities of the Escrow Agent in good faith shall be to be genuine hold and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by disburse the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and Funds in accordance with the opinion terms of such counselthis Escrow Agreement.
(b) The Subscriber and Company acknowledge that Escrow Agent may accept or act upon any instructions, directions, documents or instruments purportedly signed or issued by, or on behalf of, any corporation, partnership, fiduciary or individual; it shall not be necessary for the Escrow Agent is acting solely as a stakeholder at to inquire into their request and that the authority. The Escrow Agent shall not be held liable for in any action taken by Escrow Agent event if it accepts as accurate and acts in good faith and believed upon the contents of any notice received by it from SAC, ▇▇▇▇▇▇▇ and/or Ajax, delivered to it in accordance with the terms of this Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) This Agreement may be altered or amended only with the written consent of all of the parties hereto. The Subscriber Escrow Agent may resign as escrow agent at any time by notifying the other parties hereto in writing and, until a successor escrow agent is appointed by them and Company jointly and severally agree to reimburse accepts such appointment, the only duty of the Escrow Agent for reasonable outside counsel fees, shall be to hold the extent authorized hereunder and incurred Escrow Funds in connection accordance with the performance original instructions contained in this Escrow Agreement. Upon receipt by the Escrow Agent of its duties a written notice from SAC, ▇▇▇▇▇▇▇ and responsibilities hereunderAjax advising it of the appointment of a successor escrow agent, it shall deliver the Escrow Funds to such successor.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from exercise of judgment in the making performance of its duties hereunder but only for its own willful misconduct or retention gross negligence, and the duties of any investment in accordance with the Escrow Agent shall be determined solely by the express provisions of this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(ge) The Escrow Agent shall be permitted to act as counsel reimbursed in equal shares by SAC, ▇▇▇▇▇▇▇ and Ajax for the Subscriber all out-of-pocket expenses necessarily incurred in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent performing its obligations hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Company agrees to pay the Escrow Agent’s fees and expenses for all services rendered by it hereunder and the Escrow Agent’s reasonable attorneys’ fees and expenses incurred by it in connection with carrying out its duties hereunder.
(b) The Company acknowledge agrees to indemnify the Escrow Agent for, and agree that to hold the Escrow Agent (iwhich for purposes of this Section 8(b) shall include its officers, directors, employees and agents) harmless from and against any and all claims, losses, liabilities, costs, disbursements, damages or expenses (including reasonable attorneys’ fees and expenses and court costs) (collectively, “Losses”), arising from or in connection with or related to this Agreement or being the Escrow Agent hereunder, provided, however, that nothing contained herein shall require the Escrow Agent to be indemnified for Losses caused by its gross negligence, willful misconduct or bad faith. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent or the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Escrow Agent or the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action. The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of the Escrow Agent or the termination of this Agreement. The Escrow Agent shall not have, and hereby waives, any lien, security interest, right of set-off, or other encumbrance with respect to the Escrow Account or any money, instruments, investment property, or other property on deposit in, credited to, or carried in the Escrow Account, to secure its rights to be paid any amounts owing under Sections 8(a) or 8(b), and the Escrow Agent agrees that it shall look solely to the Company, and not to the Escrow Collateral, for the payment of any such amounts (except as set forth in Section 6(c)).
(c) The Escrow Agent shall prepare and deliver to the Company, promptly after the end of the month in which this Agreement is terminated, a written account describing all transactions with respect to the Escrow Account.
(d) The duties and responsibilities of the Escrow Agent hereunder shall be determined solely by the express provisions of this Agreement, and no other or further duties or responsibilities shall be implied. The Escrow Agent shall not be responsible for subject to, nor required to comply with, nor required to inquire as to the performance of any obligation under, any other agreement between or bound byamong the Company and the Trustee or to which either of them is a party, and 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 any entity acting on its behalf. The Escrow Agent shall not be required to inquire into whether either to, and shall not, expend or risk any of its own funds or otherwise incur any financial liability in the Subscriber performance of any of its duties hereunder.
(e) The Escrow Agent may act upon any instrument or Company is entitled to receipt other writing provided by an Authorized Officer of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent it in good faith to be genuine genuine, and to have been be signed or presented by the proper person person, and shall not be liable in connection with the performance by it of its duties pursuant to the provisions of this Agreement, except for its own willful misconduct, bad faith or partygross negligence. The Escrow Agent shall be under no duty to inquire into or investigate the validity, without being required to determine the authenticity accuracy or correctness content of any fact stated therein such instrument or the propriety other writing. The Escrow Agent shall have no duty to solicit any payments which may be due hereunder.
(f) Any corporation or validity or the service thereof; (iv) may assume that any person believed by other entity into which the Escrow Agent in good faith its individual capacity may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to be authorized to give notice or make any statement or execute any document in connection with which the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder in its individual capacity shall be a party, or any greater degree corporation or other entity to which substantially all the corporate trust business of care than the Escrow Agent gives in its own similar property; and (vi) individual capacity may consult counsel satisfactory to Escrow Agentbe transferred, shall be the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counselunder this Agreement without further act.
(bg) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights omitted or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken loss or omitted to be taken by Escrow Agent injury resulting from its actions or any its performance or lack of them hereunder, including the reasonable fees performance of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except its duties hereunder in the case absence of gross negligence negligence, bad faith or willful misconduct on Escrow Agent's part committed in its capacity as part. In no event shall the Escrow Agent under this Agreement. 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 Company or the Trustee, any entity acting on behalf of the Company or the Trustee or any other person or entity which it reasonably believes to be genuine, (ii) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians selected by it with due care, or (iii) for an amount in excess of the value of the Escrow Collateral.
(h) The Escrow Agent shall owe a duty only 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 the Subscriber and Company under this Agreement and to no other personexecute or deliver any such document, security or endorsement.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(di) The Escrow Agent may consult with legal counsel at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date expense of the resignation Company as specified in such noticeto any matter relating to this Agreement, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction shall not incur any liability in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents acting in good faith in accordance with the clerk of any advice from such courtcounsel.
(ej) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from error of judgment made in good faith by a responsible officer of the making or retention of any investment Escrow Agent, unless it shall be proved that the Escrow Agent was negligent in accordance with this Escrow Agreementascertaining the pertinent facts.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(gk) The Escrow Agent shall be permitted to not incur any liability for not performing any act as counsel for or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation control of the Escrow Agent (including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God or war or terrorism, or the termination unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility).
(l) The Escrow Agent shall exercise the same degree of care in the custody and preservation of the Escrow Collateral in its possession as it exercises toward its own similar property and shall not be held to any higher standard of care under this Agreement, nor be deemed to owe any fiduciary duty to the Company, the Trustee, the Noteholders or any other party.
Appears in 1 contract
Sources: Escrow Deposit and Disbursement Agreement (PG&E Corp)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) The Escrow Agent shall be obligated only for the performance of such duties as are expressly and specifically assumed by set forth in (A) this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, or (B) in any additional written instructions that the Escrow Agent pursuant to may receive after the date hereof which are signed by an officer of Parent and the Securityholder Representative and are not inconsistent with the terms of this Agreement; , or in the reasonable opinion of the Escrow Agent will not result in additional liability to the Escrow Agent.
(ii) The Escrow Agent shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification.
(iii) The Escrow Agent may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person Person, and shall have no responsibility or party, without being required duty to make inquiry as to or to determine the authenticity or correctness of any fact stated therein or the propriety genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the service thereof; authority of the Person signing or presenting the same.
(iv) may assume that any person believed by the The Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agentit, the including in‑house counsel. The opinion or advice of such counsel to in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by the Escrow Agent hereunder in good faith and in accordance with the opinion or advice of such counsel.
(bv) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives anyone for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, it hereunder except in the case of the Escrow Agent’s gross negligence or willful misconduct. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent has been informed of the likelihood of such loss or damage and regardless of the form of action.
(vi) The Escrow Agent shall have no more or less responsibility or liability on account of any action or omission of any book‑entry depository, securities intermediary or other sub‑escrow agent employed by the Escrow Agent than any such book‑entry depository, securities intermediary or other sub‑escrow agent has to the Escrow Agent, except to the extent that such action or omission of any book‑entry depository, securities intermediary or other sub‑escrow agent was caused by the Escrow Agent’s own gross negligence or willful misconduct on in breach of this Agreement.
(vii) The Escrow Agent is hereby authorized, in making or disposing of any investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one (1) or more of its affiliates, whether it or such affiliate is acting as a subagent of the Escrow Agent or for any third person or dealing as principal for its own account.
(viii) Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrow Fund (or take other action that may be called for hereunder to be taken by the Escrow Agent's part committed ) sooner than two (2) business days after (A) it has received the applicable documents required under this Agreement in its capacity good form, or (B) passage of the applicable time period (or both, as applicable under the terms of this Agreement), as the case may be.
(ix) Unless and except to the extent otherwise expressly set forth herein, all deposits and payments hereunder, or pursuant to the terms hereof (including without limitation all payments to the Escrow Agent under pursuant to Section 8.3(e)(x), Section 8.3(e)(xi) and Section 8.3(e)(xii)) shall be in U.S. dollars.
(x) Parent hereby agrees to pay the Escrow Agent’s compensation for its normal services hereunder in accordance with the fee schedule previously provided to Parent.
(xi) 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 owe a duty only may hold all documents and the Escrow Fund and may wait for settlement of any such controversy 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 liable for damages. 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 all documents and the Escrow Fund held in escrow, except all costs, expenses, charges and reasonable attorney fees incurred by the Escrow Agent due to the Subscriber interpleader action (the “Agent Interpleader Expenses”) and Company under which the parties agree to pay as follows: fifty percent (50%) to be paid by Parent and fifty percent (50%) to be paid by the Indemnifying Parties on the basis of each Indemnifying Party’s Pro Rata Percentage of such Agent Interpleader Expenses; provided, however, that in the event any Indemnifying Party fails to timely pay his, her or its Pro Rata Percentage of the Agent Interpleader Expenses, the parties agree that Parent may at its option pay such Indemnifying Party’s Pro Rata Percentage of the Agent Interpleader Expenses and recover an equal amount (which shall be deemed a Loss) from such Indemnifying Party’s Pro Rata Percentage of the Escrow Fund. Upon initiating such action, the Escrow Agent shall be fully released and discharged of and from all obligations and liability imposed by the terms of this Agreement and to no other personAgreement.
(cxii) The Subscriber Parent and Company the Indemnifying Parties and their respective successors and assigns agree jointly and severally agree to reimburse the indemnify and hold Escrow Agent for harmless against any and all losses, claims, damages, liabilities, and expenses, including reasonable outside costs of investigation, counsel fees, to the extent authorized hereunder including allocated costs of in‑house counsel and disbursements that may be imposed on Escrow Agent or incurred by Escrow Agent in connection with the performance of its duties under this Agreement, including but not limited to any litigation arising from this Agreement or involving its subject matter, other than those arising out of the gross negligence or willful misconduct of the Escrow Agent (the “Agent Indemnification Expenses”) as follows: fifty percent (50%) to be paid by Parent and responsibilities hereunderfifty percent (50%) to be paid by the Indemnifying Parties on the basis of each Indemnifying Party’s Pro Rata Percentage of such Agent Indemnification Expenses directly from the Escrow Fund; provided, however, that in the event the - 91 - Indemnifying Parties’ portion of the Agent Indemnification Expenses cannot be satisfied from the Escrow Fund, as the case may be, in full, the parties agree that Parent shall pay the shortfall of the Indemnifying Parties’ portion of the Agent Indemnification Expenses, and shall be entitled to recover such amount from each Indemnifying Party such Indemnifying Party’s Pro Rata Percentage of such amount without regard to any caps or other limits herein.
(dxiii) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five thirty (530) days days’ prior written notice of resignation to the Subscriber Parent and the CompanySecurityholder Representative; provided, however, that no such resignation shall become effective until the appointment of a successor escrow agent which shall be accomplished as set forth below. Prior to the effective date of the resignation as specified in such notice, Parent and the Subscriber and Company Securityholder Representative will issue to the Escrow Agent a Joint Instruction written instruction authorizing delivery redelivery of the Company Documents and Subscriber Documents Escrow Fund to a substitute bank or trust company that it selects as successor to the Escrow Agent selected by hereunder subject to the Subscriber consent of Parent and Companythe Securityholder Representative (which consent shall not be unreasonably withheld or delayed). If, however, Parent and the Securityholder Representative shall fail to jointly name such a successor escrow agent within twenty (20) days after the notice of resignation from the Escrow Agent, Parent shall be entitled to name such successor escrow agent. If no successor Escrow Agent escrow agent is named by the Subscriber and CompanyParent, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agentescrow agent. The successor escrow agent shall execute and deliver an instrument accepting such appointment and it shall, without further acts, be vested with all the estates, properties, rights, powers, and to deposit duties of the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only predecessor escrow agent as if originally named as escrow agent. Upon appointment of a successor escrow agent, having only possession thereof. The the Escrow Agent shall not be liable for discharged from any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the further duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into liability under this Agreement.
(gxiv) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition Each of the Company Documents and Subscriber Documents, in any other dispute between parties hereto acknowledge receipt of the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not notice from the Escrow Agent is then holding the Company Documents set forth on Exhibit G attached hereto and Subscriber Documents made part hereof and continues that information may be requested to act as the Escrow Agent hereunderverify their identities.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Tivo Inc)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required undertakes to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated perform only for the performance of such duties as are specifically assumed by expressly set forth herein and no implied duties or obligations shall be read into this Agreement against the Escrow Agent.
(b) The Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected act in acting or refraining from acting reliance upon any written noticewriting or instrument or signature which it, instructionin good faith, believes to be genuine, may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice any writing, notice, advice or make any statement or execute any document instructions in connection with the provisions hereof is so authorized; (v) has been duly authorized to do so. The Escrow Agent shall not be under liable in any duty manner for the sufficiency or correctness as to give form, manner, and execution, or validity of any instrument deposited in this escrow, nor as to the property held identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the safekeeping of such certificates, monies, instruments, or other documents received by it as such escrow Pledgee, and for the disposition of the same in accordance with the written instruments accepted by it in the escrow.
(c) Pledgee and Pledgor hereby agree, jointly and severally, to defend and indemnify the Escrow Agent hereunder and hold it harmless from any greater degree and all claims, liabilities, losses, actions, suits, or proceedings at law or in equity, or any other expenses, fees, or charges of care than any character or nature which it may incur or with which it may be threatened by reason of its acting as Escrow Agent gives its own similar propertyunder this Agreement, except where arising out of willful misconduct or gross negligence; and (vi) in connection therewith, to indemnify the Escrow Agent against any and all expenses, including attorneys' fees and costs of defending any action, suit, or proceeding or resisting any claim. The Escrow Agent shall be vested with a lien on all property deposited hereunder, for indemnification of attorneys' fees and court costs regarding any suit, proceeding or otherwise, or any other expenses, fees, or charges of any character or nature, which may consult counsel satisfactory be incurred by the Escrow Agent by reason of disputes arising between the makers of this escrow as to the correct interpretation of this Agreement and instructions given to the Escrow Agent hereunder, or otherwise, with the right of the Escrow Agent, regardless of the opinion instructions aforesaid, to hold said property until and unless said additional expenses, fees, and charges shall be fully paid. Any fees and costs charged by the Escrow Agent for serving hereunder shall be paid by the Borrower, which fees and costs are specified in the Standby Equity Distribution Agreement.
(d) If any two parties shall be in disagreement about the interpretation of this Agreement, or about the rights and obligations, or the propriety of any action contemplated by the Escrow Agent hereunder, the Escrow Agent may, at its sole discretion deposit the Pledged Materials with the Clerk of the Circuit Court of Hudson County, ▇▇▇ ▇▇rsey, and, upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully cease and terminate. The Escrow Agent shall be indemnified by the Borrower and Pledgee for all costs, including reasonable attorneys' fees in connection with the aforesaid proceeding, and shall be fully protected in suspending all or a part of its activities under this Agreement until a final decision or other settlement in the proceeding is received.
(e) The Escrow Agent may consult with counsel of its own choice (and the costs of such counsel to shall be paid by Borrower and Pledgee) and shall have full and complete authorization and protection in respect of for any action taken, taken or suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the opinion of such counsel.
(b) . The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall otherwise not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized mistakes of fact or within the rights error of judgment, or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken actions or omitted to be taken omissions of any kind, unless caused by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or its willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other personor gross negligence.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(df) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five upon thirty (530) days prior days' written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified parties in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Companythis Agreement. If no a successor Escrow Agent is named by the Subscriber and Companynot appointed within this thirty (30) day period, the Escrow Agent may apply to petition a court of competent jurisdiction in the State of New York for appointment of to name a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtsuccessor.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent6.1. The Escrow Agent's Agent accepts its duties and responsibilities under this Agreement, and the Escrow Securities and any share certificates or other evidence of these securities, solely as a custodian, bailee and agent. No trust is intended to be, or is or will be, created hereby and the Escrow Agent shall owe no duties hereunder as a trustee.
6.2. The Escrow Agent will not be subject responsible or liable in any manner whatever for the sufficiency, correctness, genuineness or validity of any Escrow Securities deposited with it.
6.3. The Escrow Agent will have no responsibility for seeking, obtaining, compiling, preparing or determining the accuracy of any information or document, including the representative capacity in which a party purports to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree act, that the Escrow Agent (i) shall not be responsible for receives as a condition to a release from escrow or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt a transfer of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Securities within escrow under this Agreement.
6.4. The Escrow Agent pursuant will have no responsibility for Escrow Securities that it has released to the Shareholder according to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement6.5. The Subscriber and Company, jointly and severally, agree Purchaser hereby agrees to indemnify and hold harmless the Escrow Agent, its affiliates, and their current and former directors, officers, employees and agents from and against any and all claims, demands, losses, penalties, costs, expenses, fees and liabilities, including, without limitation, legal fees and expenses, directly or indirectly arising out of, in connection with, or in respect of, this Agreement, except where same result directly and principally from gross negligence, wilful misconduct or bad faith on the part of the Escrow Agent. This indemnity survives the release of the Escrow Securities, the resignation or termination of the Escrow Agent and the termination of this Agreement.
6.6. The Escrow Agent will be protected in acting and relying reasonably upon any notice, direction, instruction, order, certificate, confirmation, request, waiver, consent, receipt, statutory declaration or other paper or document (collectively referred to as “Documents”) furnished to it and purportedly signed by any officer or person required to or entitled to execute and deliver to the Escrow Agent any such Document in connection with this Agreement, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth or accuracy of any information therein contained, which it in good faith reasonably believes to be genuine.
6.7. The Escrow Agent will not be bound by any notice of a claim or demand with respect thereto, or any waiver, modification, amendment, termination or rescission of this Agreement unless received by it in writing, and signed by the other parties including the Escrow Agent, as applicable, and, if the duties or indemnification of the Escrow Agent in this Agreement are affected, unless it has given its prior written consent.
6.8. The Escrow Agent may consult with or retain such legal counsel and advisors as it may reasonably require for the purpose of discharging its duties or determining its rights under this Agreement and may rely and act upon the advice of such counsel or advisor. The Escrow Agent will give written notice to the Purchaser as soon as practicable that it has retained legal counsel or other advisors. The Purchaser will pay or reimburse the Escrow Agent for any reasonable fees, expenses and disbursements of such counsel or advisors, upon delivery of a reasonably itemized invoice setting forth the services performed by such counsel or advisors.
6.9. In the event of any disagreement arising under the terms of this Agreement, the Escrow Agent will be entitled, at its option, to refuse to comply with any and all demands whatsoever until the dispute is settled either by a written agreement among the parties or by a court of competent jurisdiction.
6.10. The Escrow Agent will have no duties or responsibilities except as expressly provided in this Agreement and will have no duty or responsibility under the Arrangement Agreement or the Plan of Arrangement or arising under any other agreement, including any agreement referred to in this Agreement, to which the Escrow Agent is not a party.
6.11. The Escrow Agent will have the right not to act and will not be liable for refusing to act unless it has received clear and reasonable documentation that complies with the terms of this Agreement. Such documentation must not require the exercise of any discretion or independent judgment.
6.12. The Escrow Agent is authorized to cancel any share certificate delivered to it and hold the Escrow Securities in electronic, or uncertificated form only, pending release of such securities from escrow.
6.13. The Escrow Agent will have no responsibility with respect to any Escrow Securities in respect of which no share certificate or other evidence or electronic or uncertificated form of these securities has been delivered to it, or otherwise received by it.
6.14. The Escrow Agent will not be liable to any of Escrow Agent's partners, employees, agents and representatives the parties hereunder for any action taken or omitted to be taken by Escrow Agent it under or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under in connection with this Agreement, except for losses directly, principally and immediately caused by its bad faith, wilful misconduct or gross negligence. Under no circumstances will the Escrow Agent be liable for any special, indirect, incidental, consequential, exemplary, aggravated or punitive losses or damages hereunder, including any loss of profits, whether foreseeable or unforeseeable. Notwithstanding the foregoing or any other provision of this Agreement, in no event will the case collective liability of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as the Escrow Agent under or in connection with this AgreementAgreement to any one or more parties, except for losses directly caused by its bad faith or willful misconduct, exceed the amount of its annual fees under this Agreement or the amount of three thousand dollars ($3,000.00), whichever amount shall be greater.
6.15. The Escrow Agent shall owe retain the right not to act and shall not be liable for refusing to act if, due to a duty only lack of information or for any other reason whatsoever, the Escrow Agent reasonably determines that such an act might cause it to be in non-compliance with any applicable anti-money laundering or anti-terrorist legislation, regulation or guideline. Further, should the Subscriber and Company Escrow Agent reasonably determine at any time that its acting under this Agreement has resulted in it being in non-compliance with any applicable anti-money laundering or anti-terrorist legislation, regulation or guideline, then it shall have the right to resign on 10 days written notice to the Purchaser, provided: (i) that the Escrow Agent’s written notice shall describe the circumstances of such non-compliance; and (ii) that if such circumstances are rectified to no other person.
(c) The Subscriber and Company jointly and severally agree the Escrow Agent’s satisfaction within such 10 day period, then such resignation shall not be effective. For greater certainty, section 8.1 shall not apply to reimburse a resignation of the Escrow Agent for reasonable outside counsel feesin these circumstances.
6.16. The parties acknowledge that federal, provincial or state legislation that addresses the protection of individual’s personal information (collectively, “Privacy Laws”) applies to obligations and activities under this Agreement. Despite any other provision of this Agreement, no party will take or direct any action that would contravene, or cause another to contravene, applicable Privacy Laws. The Purchaser will, prior to transferring or causing to be transferred personal information to the extent authorized hereunder Escrow Agent, obtain and incurred in connection with retain required consents of the performance relevant individuals to the collection, use and disclosure of its duties and responsibilities hereunder.
(d) their personal information, or will have determined that such consents either have previously been given upon which the parties can rely or are not required under the Privacy Laws. The Escrow Agent may at will use commercially reasonable efforts to ensure that its services hereunder comply with Privacy Laws.
6.17. With respect to any time resign as Escrow Agent hereunder cash balances held in escrow by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents pursuant to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Companysection 5.3, the Escrow Agent may apply to a court of competent jurisdiction hold such cash balances in an account established for such purposes with the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court’s financial institution.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof6.18. The Escrow Agent shall not be liable for any loss resulting from required to expend or risk its own funds or otherwise incur financial liabilities in the making or retention performance of any investment of its duties hereunder, or in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties exercise of the Escrow Agent with respect to any of its rights and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent powers hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Company acknowledges and Company acknowledge and agree agrees that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are expressly and specifically assumed by set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent pursuant nor shall it be deemed to this Agreement; have knowledge of the contents of any other agreement or order, including without limit the Plan, (ii) shall not be obligated to take any legal or other action not otherwise required hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person person, and shall have no responsibility or party, without being required duty to make inquiry as to or to determine the authenticity or correctness of any fact stated therein or the propriety genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the service thereof; authority of the person signing or presenting the same, and (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agentit, including in-house counsel, and the opinion or advice of such counsel to in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the opinion or advice of such counsel, except to the extent that a court of competent jurisdiction determines that the fraud, gross negligence or willful misconduct on the part of the Escrow Agent or that of its employees, officers, directors, consultants, agents or other representatives (“Agent Fault Behavior”) caused any loss to Company.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives anyone for any action taken or omitted to be taken by it hereunder; provided, however, nothing herein shall be deemed to limit or relieve Escrow Agent’s liability arising out of any Agent Fault Behavior. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrow Property (or take other action that may be called for hereunder to be taken by the Escrow Agent) sooner than two (2) business days after (i) it has received the applicable documents required under this Agreement in good form, or (ii) passage of the applicable time period (or both, as applicable under the terms of this Agreement), as the case may be.
(d) In the event that any of the Escrow Property shall be attached, garnished or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by an order of a court, or any of them hereunderorder, including judgment or decree shall be made or entered by any court order affecting the reasonable fees of outside counsel Escrow Property, the Escrow Agent shall give prompt written notice to the Company, and other reasonable costs the Professionals identified on the attached Exhibit C, thereof, and expenses of defending itself against any claim or liability under this Agreementis hereby expressly authorized, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementsole discretion, to obey and comply with all such orders, judgments and decrees so entered or issued, which it is advised by legal counsel of its own choosing is binding upon it. The Escrow Agent shall owe a duty only not be liable to the Subscriber and Company under this Agreement and or to no any other person.
(c) The Subscriber and Company jointly and severally agree to reimburse , firm or corporation, by reason of such compliance notwithstanding such order, judgment or decree subsequently being reversed, modified, annulled, set aside or vacated; provided, however, that the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign will cooperate as Escrow Agent hereunder reasonably requested by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by in seeking the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk return of any monies released pursuant to such courtorder, judgment or decree.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from deemed to be, an agent, a representative, or a fiduciary of the making or retention of any investment in accordance with this Escrow AgreementCompany.
(f) This Agreement sets forth exclusively The Escrow Agent does not have any ownership interest in the duties of Professional Fees Escrow Account or the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this AgreementProperty.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as Unless and except to the disposition of extent otherwise expressly set forth herein, all Professional Fees Payment Amounts and payments hereunder, or pursuant to the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated terms hereof (including without limitation all payments to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues pursuant to act as the Escrow Agent hereunderSection 4 below) shall be in U.S. dollars.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Sources: Escrow Agreement
Concerning the Escrow Agent. 4.1(a) The Escrow Agent shall not be under any duty to give the Escrowed Funds held by it hereunder any greater degree of care than it gives its own similar property. Duties The Escrow Agent shall not be required to invest any funds held hereunder except as directed pursuant to Section 1 and Responsibilities Section 3 of this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto with respect to the subject matter hereof except this Escrow Agreement. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the are ministerial in nature. Except as expressly set forth herein, Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either expend or risk any of its own funds or otherwise incur any financial or other liability in the Subscriber performance of its duties hereunder.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or Company is entitled willful misconduct in taking any actions or failing to receipt take any actions hereunder. Except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, taxes (not including any taxes of the Company Documents Escrow Agent measured by or imposed upon income, and Subscriber Documents pursuant tonot including any franchise or excise taxes), damages and expenses, including reasonable attorneys' fees and disbursements, arising out of or in connection with this Escrow Agreement including the legal costs and expenses of defending itself against any other agreement claim or otherwise; liability in connection with its performance hereunder. Without limiting the foregoing, the Escrow Agent shall in no event be liable (i) in connection with its investment or reinvestment of any cash held by it hereunder in accordance with the terms hereof, or as a result of any liquidation of any such investment prior to its maturity, including any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment, reinvestment or liquidation of the Escrowed Funds, (ii) shall be obligated for any indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated, or (iii) for an amount in excess of the value of the Escrowed Funds, valued as of the date of the deposit, but only for to the performance extent of such duties as are specifically assumed by direct money damages. Without limiting the joint and several nature of the obligation of Sellers' Representatives and Buyer vis-a-vis the Escrow Agent pursuant to this Agreement; (iii) may rely on Section 4(c), as between themselves, the Sellers' Representatives and Buyer agree that they shall each share 50% of all losses, liabilities, claims, actions, taxes, damages and expenses for which the Escrow Agent is entitled to indemnification hereunder, which, in case of Sellers, shall be protected satisfied first from the Available Cash Amount and second from the Available Stock Amount. The terms of this Section 4(c) shall survive termination of this Escrow Agreement and the resignation or removal of the Escrow Agent.
(d) The Escrow Agent shall be entitled to rely in acting or refraining from acting good faith upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) . The Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counseldo so.
(be) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request may act pursuant to the advice of counsel reasonably acceptable to both Sellers' Representative and that the Buyer (Patterson, Belknap, Webb and Tyler, LLP being acceptable to both Sellers' Representative a▇▇ ▇uyer) ▇▇▇▇ respect to any matter relating to this Escrow Agent Agreement and shall not be liable for any action taken or omitted in accordance with such advice.
(f) The Escrow Agent does not have any interest in any Escrowed Funds deposited hereunder but is serving as escrow agent only and having only possession thereof. Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. Sellers' Representatives shall provide to the Escrow Agent concurrently with execution of this Escrow Agreement, appropriate W-9 or other certification forms for tax identification number certification, or W-8 or other nonresident alien certifications with respect to each of the Sellers. Buyer shall provide a duly completed W-9 to the Escrow Agent concurrently with execution of Escrow Agreement. As between Buyer and Sellers, Sellers agree to pay the taxes applicable to such income
(g) The Escrow Agent makes no representation and shall not be responsible as to the validity, value, genuineness or the collectability of any security or other documents or instrument held by or delivered to it.
(h) Each of the monthly statements identifying transactions hereunder to be provided by the Escrow Agent shall be deemed to be correct and final upon receipt thereof by the Buyer and the Sellers' Representatives unless the Buyer or the Sellers' Representatives notifies the Escrow Agent in good faith and believed by writing to the contrary within thirty (30) business days of the date of such statement.
(i) The Escrow Agent shall not be called upon to be authorized advise any party as to the wisdom in selling or within the rights retaining or powers conferred upon Escrow Agent by this Agreement. The Subscriber taking or refraining from any action with respect to any securities or other property deposited hereunder.
(j) Sellers' Representatives and Company, Buyer may jointly and severally, agree to indemnify and hold harmless remove the Escrow Agent and any of terminate this Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
upon ten (c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (510) days prior written notice signed by both parties. Upon such removal and termination, all then existing Escrowed Funds (including all investments) shall be transferred in accordance with the joint written instructions of Sellers' Representatives and Buyer. The Escrow Agent may resign at any time upon giving thirty (30) days prior notice of resignation to Buyer and Sellers' Representatives. Upon receiving such notice of resignation, the Subscriber Buyer, Sellers, and the CompanySellers' Representatives shall cause a successor escrow agent to be appointed within thirty (30) days after receipt of such notice of resignation received by Buyer and Sellers' Representatives. Prior to the effective date Upon receiving notice of the resignation as specified in such noticeappointment of a successor escrow agent, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of shall transfer any and all Escrowed Funds then held hereunder to the Company Documents and Subscriber Documents to a substitute successor Escrow Agent selected by the Subscriber and CompanyAgent. If no successor Escrow Agent is named escrow agent has been appointed within thirty (30) days after receipt of notice of resignation by the Subscriber Buyer and CompanySellers' Representatives, the Escrow Agent may apply to a court of competent jurisdiction in for the State of New York for appointment of a successor escrow agent or for other appropriate relief and, pending the appointment of a successor escrow agent, the Escrow Agent shall not, after the expiration of thirty (30) days after receipt by Buyer and Sellers' Representatives of the Escrow Agent's notice of resignation have any further duties, responsibilities, or obligations to perform any services hereunder other than to (i) safekeep the Escrowed Funds and (ii) deliver the Escrowed Funds to deposit the Company Documents and Subscriber Documents with the clerk of any such courtsuccessor escrow agent duly appointed hereunder.
(ek) The Escrow Agent does not shall have no responsibility for the contents of any court order and will not have may conclusively rely without any interest in liability upon the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession contents thereof. 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 Escrowed Funds (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Escrowed Funds), the Escrow Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, the Escrow Agent shall not be liable for to any loss resulting from of the making parties hereto or retention of to any investment in accordance with this Escrow Agreementother 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.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(gl) The Escrow Agent shall be permitted to act paid and reimbursed, as counsel applicable, by Buyer the fees and expenses for the Subscriber acceptance and administration of this Escrow Agreement set forth in any dispute as Annex C attached hereto. All fees shall be paid in United States currency and payable in the United States at the office of the Escrow Agent. Notwithstanding anything in this Escrow Agreement to the disposition of the Company Documents and Subscriber Documentscontrary, in at any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not time that the Escrow Agent is authorized or directed or otherwise required to make a disbursement or distribution from the Escrowed Funds (A) to the Sellers' Representatives or Sellers, the Escrow Agent may refrain from making such disbursement or distribution from the Escrowed Funds, without liability, if and to the extent that there are fees or expenses or any amounts then holding due to the Company Documents Escrow Agent from the Sellers pursuant to Section 4(c) or then due to the Escrow Agent from the Sellers' Representatives pursuant to this Section 4(l); or (B) to Buyer, the Escrow Agent may refrain from making such disbursement or distribution from the Escrowed Funds, without liability, if and Subscriber Documents to the extent that there are any amounts then due to the Escrow Agent from the Buyer pursuant to Section 4(c) hereof. Upon receipt of payment for such fees or expenses, the Escrow Agent shall promptly make such disbursements or distributions to Buyer. The terms of this Section 4(l) shall survive termination of this Escrow Agreement and continues resignation or removal of the Escrow Agent.
(m) 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 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).
(n) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Escrow Agent may act in 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.
(o) All instructions required or permitted hereunder to be delivered by Buyer will need to be delivered to the Escrow Agent in writing, in either original or facsimile form, executed by a person designated by Buyer as authorized to give such notices, requests, permissions, waivers, instructions and communications hereunder. A list of persons designated as authorized to act on Buyer's behalf hereunder is attached hereto as Annex D. The list attached hereto as Annex D will remain in effect until Buyer notifies the Escrow Agent of any change. Buyer shall from time to time deliver to the Escrow Agent a certified list of such Buyer authorized persons. In its capacity as Escrow Agent, the Escrow Agent will accept all instructions and documents complying with the above under the indemnities provided hereunder, and reserves the right to refuse to accept any instructions or documents which fail, or appear to fail, to comply. Further to this procedure, the Escrow Agent reserves the right to telephone an authorized person of Buyer to confirm the details of such instructions or documents if they are not already on file with the Escrow Agent as standing instructions. The Escrow Agent and the Buyer agree that the above constitutes a commercially reasonable security procedure. In addition, when the Escrow Agent acts on any information, instructions, communications, (including, but not limited to communications with respect to delivery of securities or the wire transfer of funds) sent by facsimile, 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 the Buyer or is not in the form the Buyer sent or intended to send (whether due to fraud, distortion or otherwise). Buyer 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. The terms of this Section 4(o) shall survive termination of this Escrow Agreement and the resignation or removal of Escrow Agent.
(p) All instructions required or permitted hereunder to be delivered by Seller's Representatives will need to be delivered to the Escrow Agent in writing, in either original or facsimile form, executed by Sellers' Representatives as authorized to give such notices, requests, permissions, waivers, instructions and communications on behalf of the Sellers hereunder. In its capacity as Escrow Agent, the Escrow Agent will accept all instructions and documents complying with the above under the indemnities provided hereunder, and reserves the right to refuse to accept any instructions or documents which fail, or appear to fail, to comply. Instructions to invest or reinvest that are received from the Sellers' Representatives after 11:00 a.m. (E.S.T.) will be treated as if received on the following business day in New York. Further to this procedure, the Escrow Agent reserves the right to telephone Sellers' Representatives to confirm the details of such instructions or documents if they are not already on file with the Escrow Agent as standing instructions. The Escrow Agent and Sellers' Representatives agree that the above constitutes a commercially reasonable security procedure. In addition, when the Escrow Agent acts on any information, instructions, communications, (including, but not limited to communications with respect to delivery of securities or the wire transfer of funds) sent by facsimile, 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 the Sellers' Representatives or is not in the form the Sellers' Representatives sent or intended to send (whether due to fraud, distortion or otherwise). Sellers' Representatives 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. The terms of this Section 4(p) shall survive termination of this Escrow Agreement and the resignation or removal of Escrow Agent.
(q) 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 retaining possession of the Escrowed Funds, unless the Escrow Agent receives written instructions, signed by Buyer and Sellers' Representatives, which eliminates such ambiguity or uncertainty.
(hr) The provisions In the event of this Section 4.1 shall survive any dispute between or conflicting claims by or among the resignation of Buyer, Seller, the Sellers' Representatives, and/or any other person or entity with respect to any Escrowed Funds, the Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any and all claims, demands or the termination of this Agreement.instructions with respect to such Escrowed Funds so long as such dispute or conflict shall continue, and t
Appears in 1 contract
Sources: Escrow Agreement (Ionics Inc)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for have no duties or bound by, responsibilities except those expressly set forth herein. The Escrow Agent may consult with counsel and shall not be required to inquire into whether either the Subscriber have no liability hereunder except for its own negligence or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) willful misconduct. It may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrumentcertificate, statement, request request, consent, confirmation, agreement or document furnished to other instrument which it hereunder and believed by the Escrow Agent in good faith reasonably believes to be genuine and to have been signed or presented by the a proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counselpersons.
(b) The Subscriber and Company acknowledge that Escrow Agent shall have no duties with respect to any agreement or agreements with respect to any or all of the Escrow Agent is acting solely Funds other than as a stakeholder at their request provided in this Agreement. In the event that any of the terms and that provisions of any other agreement between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control in all respects. Notwithstanding any provision to the contrary contained in any other agreement, the Escrow Agent shall not be liable for any action taken by have no interest in the Escrow Agent Funds except as provided in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse So long as the Escrow Agent for reasonable outside counsel fees, shall have any obligation to pay any amount to the extent authorized hereunder Stockholder and/or the Company from the Escrow Funds hereunder, the Escrow Agent shall keep proper books of record and incurred account, in connection with which full and correct entries shall be made of all receipts, disbursements and investment activity in the performance of its duties and responsibilities hereunderEscrow Account.
(d) The Escrow Agent may at shall not be bound by any time resign as Escrow Agent hereunder by giving five (5) days prior written notice modification of resignation to this Agreement affecting the Subscriber rights, duties and the Company. Prior to the effective date obligations of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents unless such modification shall be in writing and Subscriber Documents to a substitute Escrow Agent selected signed by the Subscriber other parties hereto, and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court shall have given its prior written consent thereto. The Escrow Agent shall not be bound by any other modification of competent jurisdiction in this Agreement unless the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtAgent shall have received written notice thereof.
(e) The Escrow Agent does may resign as escrow agent at any time by giving thirty (30) days written notice by registered or certified mail to the Company and the Stockholder and such resignation shall take effect at the end of such thirty (30) days or upon earlier appointment of a successor. A successor escrow agent hereunder may be appointed by designation in writing signed by the Company and the Stockholder. The Company and the Stockholder undertake to utilize their best efforts to arrange for the appointment of a successor escrow agent. If any instrument of acceptance by a successor escrow agent shall not have been delivered to the Escrow Agent within sixty (60) days after the giving of such notice of resignation, the resigning Escrow Agent may at the expense of the Stockholder and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as petition any court of competent jurisdiction for the appointment of a successor escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively If at any time hereafter the duties Escrow Agent shall resign, be removed, be dissolved or otherwise become incapable of acting, or the bank or trust company acting as the Escrow Agent shall be taken over by any government official, agency, department or board, or the position of the Escrow Agent with respect shall become vacant for any of the foregoing reasons or for any other reason, the Stockholder and the Company shall appoint a successor escrow agent to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreementfill such vacancy.
(g) The Escrow Agent Every successor escrow agent appointed hereunder shall execute, acknowledge and deliver to its predecessor, and also to the Company and the Stockholder, an instrument in writing accepting such appointment hereunder, and thereupon such successor escrow agent, without any further act, shall become fully vested with all the rights, immunities and powers and shall be permitted subject to act as counsel for the Subscriber in any dispute as to the disposition all of the Company Documents duties and Subscriber Documentsobligations, in any other dispute between the Subscriber of its predecessor; and Company which is unrelated every predecessor escrow agent shall deliver all property and moneys held by it hereunder to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderits successor.
(h) The provisions Company and the Stockholder shall share equally the fee charged by the Escrow Agent for performing its services hereunder. Except as provided in subsection 9(i) hereof, the Company and the Stockholder shall share equally any reasonable out of pocket cost incurred by the Escrow Agent in performing its duties hereunder. This covenant shall survive termination of this Section 4.1 Agreement.
(i) The Company and the Stockholder hereby agree to indemnify and hold the Escrow Agent harmless from and against any and all expenses (including reasonable attorneys' fees), liabilities, claims, damages, actions, suits or other charges ("Agent Claims") incurred by or assessed against the Escrow Agent for anything done or omitted by the Escrow Agent in the performance of the Escrow Agent's duties hereunder, except such which result from the Escrow Agent's bad faith, gross negligence or willful misconduct. Agent Claims payable hereunder shall be paid one-half by the Company and one-half by the Stockholder. This indemnity shall survive the resignation of the Escrow Agent or the termination of this Agreement.
(j) To the extent any amount due to the Escrow Agent pursuant to Sections 9(h) or 9(i) is not paid, the Escrow Agent may deduct the same from the Escrow Account.
(k) The Escrow Agent's fees shall be Five Hundred Dollars ($500) per year, payable in advance on the date this Agreement is executed by the Escrow Agent and on each subsequent anniversary date thereof, as long as the Escrow Agent is holding any of the Escrow Funds and/or the Letter of Credit hereunder.
Appears in 1 contract
Sources: Indemnification and Escrow Agreement (Dt Industries Inc)
Concerning the Escrow Agent. 4.1(a) The Escrow Agent shall not be under any duty to give the property held by it hereunder any greater degree of care than it gives its own similar property.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. Duties and Responsibilities of No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent's duties and responsibilities Agent shall not be subject to bound by the following terms and conditions:provisions of any agreement between the parties except this Agreement.
(ac) The Subscriber 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, AMDL, the Sellers and Company acknowledge the Purchasers shall indemnify and agree that hold harmless the Escrow Agent from and against any and all losses, liabilities, claims, actions, damages and expenses, including, without limitation, reasonable attorneys' fees and disbursements, arising out of or in connection with this Agreement.
(id) The Escrow Agent shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice receipt or advice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by do so. The Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to shall be full and complete authorization and protection fully protected in respect of any action taken, suffered or omitted by Escrow Agent taken hereunder in good faith and in accordance with shall not be responsible for any failure or inability of the opinion Parties to honor any of the provisions of this Agreement. The Escrow Agent shall be under no liability to the other parties to any document (except this Agreement) or to anyone else by reason of any failure on the part of any such counselparty to perform such party's obligations under such agreement.
(be) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and that the Escrow Agent shall not be liable for any action taken or omitted in accordance with such advice.
(f) The Escrow Agent does not have any interest in the property deposited hereunder but is serving as escrow holder only and having only possession thereof. AMDL shall pay or reimburse the Escrow Agent upon request for any and all expenses, if any, incurred by the Escrow Agent in good faith connection with this Agreement and believed by Escrow Agent transfer taxes or other taxes relating to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber Account incurred in connection herewith and Company, jointly and severally, agree to shall indemnify and hold harmless the Escrow Agent and from any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted amounts that it is obligated to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except pay in the case way of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. such expenses and taxes.
(g) The Escrow Agent shall owe a duty only makes no representation as to the Subscriber and Company under this Agreement and validity, value, or genuineness of any security or other document or instrument held by or delivered to no other personit.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(dh) The Escrow Agent may at any time resign as such by delivering the Account to any successor Escrow Agent hereunder designated by giving five a majority of the Sellers 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 (5a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days prior after the date of delivery of its written notice of resignation to the Subscriber and the CompanyAMDL. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to If at that time the Escrow Agent has not received a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment designation of a successor Escrow Agent, and the Escrow Agent's sole responsibility after that time shall be to deposit safekeep the Company Documents and Subscriber Documents with escrowed property until receipt of a designation of successor Escrow Agent or a written disposition instruction by a majority of the clerk Sellers or a final order of any such courta court of competent jurisdiction.
(ei) The Escrow Agent does not have and will not have In the event of any interest disagreement resulting in adverse claims or demands being made in connection with the escrowed property, or in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of event that the Escrow Agent with respect in good faith is in doubt as to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The what action it should take hereunder, the Escrow Agent shall be permitted entitled to act as retain the escrowed property until the Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of the escrowed property or (ii) a written agreement executed by the parties to the dispute directing delivery of the escrowed property, in which event the Escrow Agent shall disburse the escrowed property in accordance with such order or agreement. Any court order shall be accompanied by a legal opinion by counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated presenting party satisfactory to the Escrow Agreement, whether or not Agent to the Escrow Agent effect that said opinion is then holding the Company Documents final and Subscriber Documents and continues to act as the Escrow Agent hereundernon-appealable.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Sources: Warrant Exercise Stock Purchase Agreement (Amdl Inc)
Concerning the Escrow Agent. 4.122.01 The Escrow Agent shall be entitled to receive such fees as are reasonable and customary as compensation for its services hereunder, and shall be reimbursed for all reasonable expense, disbursements, and advances incurred or made by the Escrow Agent in performance of its duties hereunder. Duties The annual fees shall be paid by the Buyer and Responsibilities any fees associated with actions specifically requested by a Representing Stockholder, including those resulting from the sale of Parent Shares or other securities by the Escrow Agent in accordance with Section 2(c) of this Escrow Agreement shall be borne by such Representing Stockholder, in each case as per the Fee Schedule (the "Fee Schedule") attached hereto as Annex B.
22.02 The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving notice of such resignation to the Buyer and the Representing Stockholders specifying a date when such resignation shall take effect. Upon such notice, a successor Escrow Agent shall be appointed with the consent of the Buyer and the Representing Stockholders, such successor Escrow AgentAgent to become Escrow Agent hereunder upon the resignation date specified in such notice. If the Buyer and the Representing Stockholders are unable to agree upon a successor Escrow Agent within thirty days after such notice, the Escrow Agent shall be entitled to apply to a court of competent jurisdiction for the appointment of a successor escrow agent, with any expenses to be shared equally by the Buyer on the one hand and the Representing Stockholders on the other hand. The Escrow Agent's duties Agent shall continue to serve until its successor accepts the terms of the escrow and responsibilities receives the Escrow Fund. The Buyer and the Representing Stockholders hereto shall be subject have the right at any time upon their mutual consent to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that substitute a new Escrow Agent by giving notice thereof to the Escrow Agent (i) then acting.
22.03 With the exception of Sections 1.02, 1.09 and 11 of the Agreement and the related definitions, the Escrow Agent shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt charged with knowledge of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for Agreement. A copy of the performance of Agreement has been delivered to the Escrow Agent prior to the date hereof. The Escrow Agent undertakes to perform such duties as are specifically assumed by set forth herein and no implied duties shall be read into this Escrow Agreement against the Escrow Agent; the Escrow Agent pursuant to this Agreement; (iii) may rely on conclusively rely, and shall be protected in acting or refraining from acting upon acting, on any written notice, instruction, instrument, statement, request or document furnished to it hereunder and signature believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person Party or partyParties duly authorized to do so; provided, without being required to determine however, in accordance with Section 6.15 of the authenticity Agreement, any action taken or correctness of any fact stated therein or decision made by the propriety or validity or Representing Stockholders hereunder shall be evidenced in a writing signed by the service thereof; (iv) may assume that any person believed by Stockholder Representatives. The Buyer and the Representing Stockholders are the only authorized persons upon which the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be may conclusively rely for all purposes under any duty to give the property held by this Agreement. The Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, shall have no responsibility for the opinion of such counsel to be full and complete authorization and protection in respect contents of any action taken, suffered or omitted by Escrow Agent hereunder in good faith writing contemplated herein and in accordance with may rely without any liability upon the opinion of such counselcontents thereof.
(b) 22.04 The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent it in good faith and believed by Escrow Agent it to be authorized hereby or within the rights or powers power conferred upon Escrow Agent by this Agreement. The Subscriber and Companyit hereunder, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives nor for any action taken or omitted to by it in good faith, and in accordance with advice of counsel (which counsel may be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agentown choosing), and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making mistake or retention fact or error of judgment or for any acts or omissions of any investment in accordance with this Escrow Agreementkind unless attributable solely to its willful misconduct or gross negligence.
(f) This Agreement sets forth exclusively the duties of 22.05 Each Party hereto agrees to indemnify the Escrow Agent with respect to and hold it harmless against any and all matters pertinent thereto liabilities incurred by it hereunder as a consequence of such Party's action, and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted the Parties agree jointly and severally to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not indemnify the Escrow Agent is then holding the Company Documents and Subscriber Documents hold it harmless against any and continues to act as all liabilities incurred by it hereunder that are not a consequence of any Party's action, except in either case for liabilities incurred by the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 resulting solely from its own willful misconduct, which shall survive the resignation include distributing Escrow Shares to any member of the Escrow Agent Buyer Indemnified Group pursuant to Section 3(b) prior to the expiration of the fourteen day notice period under Section 4(b)(i), or the termination of this Agreementgross negligence.
Appears in 1 contract
Concerning the Escrow Agent. 4.1To induce the Escrow Agent to act hereunder, it is further agreed by the Company, that:
(a) The Escrow Agent shall not be under any duty to give the Shares (the Shares deposited by the Company hereunder shall hereinafter be referred to collectively as the "Escrowed Property") held by it hereunder any greater degree of care than it gives its own similar property.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. Duties and Responsibilities of No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent's duties and responsibilities Agent shall not be subject to bound by the following terms and conditions:provisions of any agreement among the other parties hereto except this Escrow Agreement.
(ac) The Subscriber 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 other parties hereto shall jointly and Company acknowledge severally indemnify and agree that hold harmless the Escrow Agent (iand any successor Escrow Agent) shall not be responsible for or bound byfrom and against any and all losses, liabilities, claims, actions, damages and shall not be required to inquire into whether either expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant toforegoing, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant 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 this Agreement; any such delay.
(iiid) may rely on and The Escrow Agent shall be protected in acting or refraining from acting entitled to rely upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice receipt or advice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counseldo so.
(be) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and that the Escrow Agent shall not be liable for any action taken by or omitted in accordance with such advice.
(f) The Escrow Agent does not have any interest in good faith the Escrow Property deposited hereunder but is serving as escrow holder only and believed by having only possession thereof. the Company shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber Escrowed Property incurred in connection herewith and Company, jointly and severally, agree to shall indemnify and hold harmless the Escrow Agent and from any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted amount that it is obligated to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except pay in the case way of gross negligence or willful misconduct on such taxes. Any payments of income from this Escrow Agent's part committed Account shall be subject to withholding regulations then in its capacity as Escrow Agent under this Agreementforce with respect to United States taxes. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company parties hereto will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of provide the Escrow Agent with appropriate W-9 forms for tax I.D., 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 or funds that are part of the Escrowed Property and it is not responsible for any other reporting. This paragraph and all matters pertinent thereto and no implied duties paragraph (c) shall survive notwithstanding any termination of this Escrow Agreement or obligations shall be read into the resignation of this AgreementEscrow Agent.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute makes no representations as to the disposition validity, value, genuineness or the collectability of the Company Documents and Subscriber Documents, in any security or other dispute between the Subscriber and Company which is unrelated document or instrument held by or delivered to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderit.
(h) The provisions 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 to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of this Section 4.1 competent jurisdiction, whereupon the Escrow Agent shall survive be discharged of and from any an all further obligations arising in connection with the Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at the time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agents sole responsibility after that time shall be to safe keep the Escrowed Property until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a Final Order of a Court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the content thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final non-appealable order of a Court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that said opinion is final and non-appealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) The Company shall pay the Escrow Agent compensation (as payment in full for the services to be rendered by the Escrow Agent hereunder) in accordance with Schedule A attached hereto and incorporated herein at the time of Closing as provided in this Escrow Agreement and agree to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements for its counsel). It is agreed that the Escrow Shares shall be held by Escrow Agent as collateral for such payment of fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein and Escrow Agent may, after reasonable written notice to the Company liquidate such number of Escrow Shares as is necessary and reasonable to fully reimburse Escrow Agent for any fees or expenses due hereunder. It is understood that the Escrow Agent's fees may be adjusted from time to time to conform to its then-current guidelines.
(m) The parties hereunder hereby irrevocably submit to the jurisdiction of any court located in Arizona in any action or proceeding arising out of or relating to this Escrow Agreement, and the parties hereby irrevocably agree that all claims in respect of any such action or proceeding shall be heard and determined in such a Arizona court. The parties hereby consent to and grant to any such court jurisdiction over the ▇▇▇▇▇▇▇ of such parties and over the subject matter of any such dispute and agree that delivery or mailing of any process or other papers in the manner provided herein above, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including without limitation prospectuses, notices, reports and promotional material) which mention the name of Escrow Agent or the termination 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.
(o) The Escrow Agreement shall be binding upon and inure solely to the benefit of the parties hereto and the respective successors and assigns, heirs, administrators and representatives and shall not be enforceable by or inure to the benefit of any third party except as provided in paragraph 7(i) with respect to a resignation by the Escrow Agent. No party may assign any of its rights or obligations under this AgreementEscrow Agreement without the written consent of the other parties. This Escrow Agreement shall be construed in accordance with and governed by the internal law of Arizona (without reference to its rule as to conflicts of law). To the best knowledge of the principals to this transaction, neither the underlying transaction/purpose nor the Escrow Agreement violate any law or regulation.
(p) This Escrow Agreement may only be modified by a writing signed by all of the parties hereto, and no waiver hereunder shall be effective unless in writing signed by the party to be charged.
(q) The Company authorizes 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: Reorganization Plan and Agreement (G/O International Inc)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of To induce the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject Agent to act hereunder, it is further agreed by the following terms and conditionsundersigned that:
(a) The Subscriber and Company acknowledge and agree that This Escrow Agreement expressly sets forth all the duties of the Escrow Agent (i) with respect to any and all matters pertinent hereto. No implied duties or obligations on the part of the Escrow Agent shall be read into this Escrow Agreement. The Escrow Agent shall not be responsible for or bound by, and by the provisions of any agreement among the other parties hereto except this Escrow Agreement.
(b) The Escrow Agent shall not be required liable for any action or failure to inquire into whether either act in its capacity as Escrow Agent hereunder unless such action or failure to act shall constitute willful misconduct on the Subscriber or Company is part of the Escrow Agent, in which case there shall be no indemnification obligations.
(c) The Escrow Agent shall be entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume act in reliance upon any instrument or signature believed by it to be genuine and may assume, unless he has actual knowledge to the contrary, that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunderdo so.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation act pursuant to the Subscriber advice of counsel with respect to any matter relating to this Escrow Agreement and the Company. Prior to the effective date of the resignation shall not be liable for any action taken or omitted in accordance with such advice, except as specified provided in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtparagraph 8(b) above.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber DocumentsNotes, Conversion Shares, or any other property deposited hereunder but is serving only as escrow agent, holder only and having only possession thereof, and is not charged with any duty or responsibility to determine the validity or enforceability of any such documents.
(f) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Notes to any successor Escrow Agent, jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement thereafter. The resignation of the Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Notes and not make delivery or disposition thereof until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(g) In the event of any disagreement among the parties hereto resulting in adverse claims or demands being made in connection with the Notes, or in the event that the Escrow Agent otherwise determines that the Notes should be retained, then the Escrow Agent may retain the Notes until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Notes, or (ii) a written agreement executed by the other parties hereto directing delivery of the Notes, in which case the Escrow Agent shall promptly deliver the Notes in accordance with such order or agreement. Any court order referred to in (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 court order is final and nonappealable. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any act on such court order and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderlegal opinion without further question.
(h) The provisions This Escrow Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their respective successors (including successors by way of merger) and assigns, heirs, administrators and representatives and shall not be enforceable by or inure to the benefit of any third party except as provided in paragraph (g) with respect to a resignation by the Escrow Agent.
(i) This Escrow Agreement may be modified by a writing signed by all the parties hereto, and no waiver hereunder shall be effective unless in a writing signed by the party to be charged.
(j) Lakota acknowledges and agrees that in any dispute involving the Agreement, Notes or this Escrow Agreement, that Escrow Agent may represent Purchaser's interests and shall not have a conflict of interest due to the fact that Escrow Agent is also acting as an escrow agent pursuant to this Escrow Agreement and Lakota hereby waives any right which it may have had to assert a conflict of interest in the absence of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement8(j).
Appears in 1 contract
Concerning the Escrow Agent. 4.1. 4.1 Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Purchaser and the Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber Purchaser, the Company or Company any other party is entitled to receipt of any Document or all or any portion of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwiseEscrowed Payment; (ii) shall not be called upon to construe or review any Document or any other document, instrument or agreement entered into in connection therewith; (iii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iiiiv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (ivv) may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice or make any statement or execute any document in connection with the provisions hereof is so authorizedhas been duly authorized to do so; (vvi) shall EXECUTION COPY -------------- not be responsible for the identity, authority or rights of any person, firm or company executing or delivering or purporting to execute or deliver this Agreement or any Document or any funds deposited hereunder or any endorsement thereon or assignment thereof; (vii) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (viviii) may consult counsel satisfactory to Escrow Agent (including, without limitation, Loeb & Loeb, LLP or such other counsel of Escrow Agent's choosing), the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber Purchaser and the Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber Purchaser and Companythe Company hereby, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for from and against any action and all actions taken or omitted to be taken by Escrow Agent or any of them hereunderhereunder and any and all claims, losses, liabilities, costs, damages and expenses suffered and/or incurred by the Escrow Agent arising in any manner whatsoever out of the transactions contemplated by this Agreement and/or any transaction related in any way hereto, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under claims, losses, liabilities, costs, damages and expenses arising in any manner whatsoever out the transactions contemplated by this AgreementAgreement and/or any transaction related in any way hereto, except in for such claims, losses, liabilities, costs, damages and expenses incurred by reason of the case of Escrow Agent's gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementmisconduct. The Escrow Agent shall owe a duty only to the Subscriber Purchaser and the Company under this Agreement and to no other person.
(c) The Subscriber Purchaser and the Company shall jointly and severally agree to reimburse the Escrow Agent for its reasonable outside out-of-pocket expenses (including counsel feesfees (which counsel may be Loeb & Loeb, to LLP or such other counsel of the extent authorized hereunder and Escrow Agent's choosing) incurred in connection with the performance of its duties and responsibilities hereunder, which shall not (subject to Section 4.1(b)) exceed $4,000.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) business days prior written notice of resignation to the Subscriber Purchaser and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber Purchaser and Company will issue to the Escrow Agent a Joint Instruction joint EXECUTION COPY -------------- instruction authorizing delivery of the Company Documents and Subscriber Documents the Escrowed Payment to a substitute Escrow Agent selected by the Subscriber Purchaser and the Company. If no successor Escrow Agent is named by the Subscriber Purchaser and the Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents the Escrowed Payment with the clerk of any such court, and/or otherwise commence an interpleader or similar action for a determination of where to deposit the same.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documentsthe Escrowed Payment, but is serving only as escrow agent, having only possession thereof. .
(f) The Escrow Agent shall not be liable for any loss resulting from action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or within the making rights or retention of any investment powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with this advice of counsel (which counsel may be Loeb & Loeb, LLP or such other counsel of the Escrow AgreementAgent's choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except to the extent any such liability arose from its own willful misconduct or gross negligence.
(fg) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(gh) The Escrow Agent shall be permitted to act as counsel for the Subscriber Purchaser or the Company, as the case may be, in any dispute as to the disposition of the Company Documents and Subscriber Documentsthe Escrowed Payment, in any other dispute between the Subscriber Purchaser and Company which is unrelated to the Escrow AgreementCompany, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and/or the Escrowed Payment and continues to act as the Escrow Agent hereunder.
(hi) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Sources: Funds Escrow Agreement (Reliant Home Warranty Corp)
Concerning the Escrow Agent. 4.1To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Parent that:
(a) The Escrow Agent shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. Duties and Responsibilities of No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent's duties and responsibilities Agent shall not be subject to bound by the following terms and conditions:provisions of any agreement among the other parties hereto except this Escrow Agreement.
(ac) The Subscriber Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of any representations, warranties or covenants contained in this Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and Company acknowledge severally indemnify and agree that hold harmless the Escrow Agent (iand any successor Escrow Agent) shall not be responsible for or bound byfrom and against any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of, and in connection with, this Escrow Agreement. The Escrow Agent shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt have a lien of the Company Documents and Subscriber Documents pursuant to, amount of any other agreement such expense or otherwise; (ii) shall be obligated only for loss on the performance of such duties as are specifically assumed Escrowed Property held by the Escrow Agent pursuant to this Agreement; (iii) may rely on it hereunder and shall be protected in acting entitled to reimburse itself from such Escrowed Property for the amount of any such expense or refraining from acting loss agreed upon by the parties or pursuant to a court order. This paragraph (c) and paragraphs (f) and (e) of this Article IV shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent shall be entitled to rely upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume that act in reliance upon any person instrument or signature believed by the Escrow Agent it in good faith to be authorized genuine and may assume, if in good faith, 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 is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counseldo so.
(be) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and that the Escrow Agent shall not be liable for any action taken by Escrow Agent or omitted in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other personaccordance with such advice.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(ef) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber DocumentsEscrowed Property deposited hereunder, but is serving only as escrow agent, having only possession thereofholder only. The Escrow Agent shall not be liable for any loss resulting Any payments of income from the making or retention of any investment Escrow Account shall be subject to withholding regulations then in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent force with respect to any and all matters pertinent thereto and no implied duties applicable United States or obligations shall be read into this Agreementother taxes.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute makes no representation as to the disposition validity, value, genuineness, or the collectibility of the Company Documents and Subscriber Documentsany security or other documents or instrument held by, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreementor delivered to, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderit.
(h) The provisions 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) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by Parent and the Company or at any time may resign by giving five (5) days written notice to such effect to Parent and the Company. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Section 4.1 shall survive the Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (A) the appointment of a successor (including a court of competent jurisdiction) or (B) the Escrow Agent's delivery of the Escrowed Property to a court of competent jurisdiction in accordance with paragraph (i) of this Article IV.
(j) The Escrow Agent shall deliver to the parties monthly statements of the balance in the Escrow Accounts and the amount subject to claims.
(k) In the event of any disagreement among or between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (A) a final and non-appealable order of the Arbitrator or a court of competent jurisdiction directing delivery of the Escrowed Property or (B) a written agreement executed by the other parties hereto directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, Parent and the Company shall each pay the Escrow Agent 50% of the fees determined in accordance with the terms set forth on Exhibit A hereto (and made a part of this Escrow Agreement as if herein set forth). In addition, Parent and the Company each agree to reimburse the Escrow Agent for 50% of all reasonable expenses, disbursements, and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses, and disbursements of its counsel).
(m) No publicly distributed material or other matter in any language (including, without limitation, notices and reports) which mentions the Escrow Agent's name or the termination rights, powers, or duties of this Agreementthe 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.
Appears in 1 contract
Concerning the Escrow Agent. 4.1To induce the Escrow Agent to act hereunder, it is further agreed by each of the Seller and FGC that:
(i) 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 funds held hereunder except as directed in this Agreement. Duties Uninvested funds held hereunder shall not earn or accrue interest.
(ii) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and Responsibilities of all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and by the provisions of any agreement among the other parties hereto except this Agreement.
(iii) The Escrow Agent shall not be required liable, except for its own gross negligence or willful misconduct, and, except with respect to inquire into whether either claims based upon such gross negligence or willful misconduct that are successfully asserted against the Subscriber or Company is Escrow Agent, the other parties hereto shall
(iv) The Escrow Agent shall be entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume that act in reliance upon any person instrument or signature believed by the Escrow Agent it in good faith to be authorized genuine and may assume, if in good faith, 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 is so authorized; has been duly authorized to do so.
(v) shall not be under any duty to give the property held by The Escrow Agent hereunder may act pursuant to the advice of counsel with respect to any greater degree of care than matter relating to this Escrow Agent gives its own similar property; Agreement and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(vi) The Escrow Agent does not have any interest in the Escrowed Funds deposited hereunder, but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes.
(vii) The Escrow Agent makes no representation as to the validity, value, genuineness, or the collectibility of any security or other documents or instrument held by, or delivered to, it.
(viii) 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.
(ix) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by FGC and the Seller or at any time may resign by giving written notice to such effect to FGC and the Seller. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (A) the appointment of a successor (including a court of competent jurisdiction) or (B) the day that is 30 days after the date of delivery: (1) to the Escrow Agent of the other parties' notice of termination or (2) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed
(x) 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.
(xi) In the event of any disagreement among or between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (A) a final and believed non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (B) a written agreement executed by the other parties hereto directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (A) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber effect that said court order is final and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementnon-appealable. The Escrow Agent shall owe a duty only to the Subscriber act on such court order and Company under this Agreement and to no other personlegal opinions without further question.
(cxii) The Subscriber As consideration for its agreement to act as Escrow Agent as herein described, FGC, on the one hand, and Company jointly the Seller, on the other hand, agrees to share equally the Escrow Agent fees determined in accordance with the terms set forth on Exhibit A hereto (and severally made a part of this Escrow Agreement as if herein set forth). In addition, FGC and the Seller agree to reimburse the Escrow Agent for all reasonable outside counsel feesexpenses, to the extent authorized hereunder disbursements, and advances incurred in connection with the performance of its duties and responsibilities hereunder.or made by the
(dxiii) The Escrow Agent may at No publicly distributed material or other matter in any time resign as Escrow Agent hereunder by giving five language (5including, without limitation, notices and reports) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to which mentions the Escrow Agent a Joint Instruction authorizing delivery of Agent's name or the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Companyrights, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agentpowers, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderfirst have given its specific written consent thereto.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1(a) The Escrow Agent shall be entitled to reasonable compensation, as may be set forth in a separate letter from the Escrow Agent for his services hereunder and shall be reimbursed for all reasonable expenses, disbursements and advances (including reasonable attorneys' fees actually incurred by the Escrow Agent in connection with the use of outside attorneys) (collectively, the "Escrow AGENT Fees") incurred or made by him in performance of his duties hereunder on or after the date hereof. Duties All of the Escrow Agent Fees shall be paid by Purchaser. The Escrow Agent may resign and Responsibilities be discharged from its duties hereunder at any time by giving notice of such resignation to the Purchaser and Vestin specifying a date (not less than 30 DAYS after the giving of such notice) when such resignation shall take effect, provided, however, that the Escrow Agent shall continue to serve until his successor accepts the escrow and receives the funds deposited with the Escrow Agent. The Promptly after such notice, a successor escrow agent shall be appointed by mutual agreement of the Purchaser and Vestin, such successor escrow agent to become Escrow Agent hereunder upon the later of the resignation date specified in such notice or the acceptance of the escrow and the receipt of the escrowed funds by the successor Escrow Agent's duties . The Purchaser and responsibilities shall be subject Vestin may agree at any time to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that substitute a new escrow agent by giving notice thereof to the Escrow Agent then acting.
(ib) shall not be responsible for or bound by, and shall not be required The Escrow Agent undertakes to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated perform only for the performance of such duties as are specifically assumed by the set forth herein. The Escrow Agent pursuant acting or refraining from acting in good faith shall not be liable for any mistake of fact or error of judgment by him or for any acts or omissions by him of any kind unless caused by willful misconduct or gross negligence, and shall be entitled to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting doing so, upon any written notice, instruction, instrument, statement, request instrument or document furnished to it hereunder and signature reasonably believed by the Escrow Agent in good faith him to be genuine and to have been signed or and presented by the proper person party or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be parties duly authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementdo so. The Escrow Agent shall owe a duty only have no responsibility for the contents of any writing submitted to him hereunder and shall be entitled in good faith reasonably to rely without any liability upon the Subscriber and Company under this Agreement and to no other personcontents thereof.
(c) The Subscriber and Company jointly and severally agree Purchaser agrees to reimburse indemnify the Escrow Agent and hold him harmless against any and all liabilities incurred by him hereunder, except for reasonable outside counsel fees, to the extent authorized hereunder and liabilities incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making his own willful misconduct or retention of any investment in accordance with this Escrow Agreementgross negligence.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Company agrees to pay the Escrow Agent’s fees and expenses for all services rendered by it hereunder and the Escrow Agent’s reasonable attorneys’ fees and expenses incurred by it in connection with carrying out its duties hereunder.
(b) The Company acknowledge agrees to indemnify the Escrow Agent for, and agree that to hold the Escrow Agent (iwhich for purposes of this Section 8(b) shall include its officers, directors, employees and agents) harmless from and against any and all claims, losses, liabilities, costs, disbursements, damages or expenses (including reasonable attorneys’ fees and expenses and court costs) (collectively, “Losses”), arising from or in connection with or related to this Agreement or being the Escrow Agent hereunder, provided, however, that nothing contained herein shall require the Escrow Agent to be indemnified for Losses caused by its gross negligence, willful misconduct or bad faith. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent or the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Escrow Agent or the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action. The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of the Escrow Agent or the termination of this Agreement. The Escrow Agent shall not have, and hereby waives, any lien, security interest, right of set-off, or other encumbrance with respect to the Escrow Account or any money, instruments, investment property, or other property on deposit in, credited to, or carried in the Escrow Account, to secure its rights to be paid any amounts owing under Sections 8(a) or 8(b), and the Escrow Agent agrees that it shall look solely to the Company, and not to the Escrow Collateral, for the payment of any such amounts (except as set forth in Section 6(c)).
(c) The Escrow Agent shall prepare and deliver to the Company, promptly after the end of the month in which this Agreement is terminated, a written account describing all transactions with respect to the Escrow Account.
(d) The duties and responsibilities of the Escrow Agent hereunder shall be determined solely by the express provisions of this Agreement, and no other or further duties or responsibilities shall be implied. The Escrow Agent shall not be responsible for subject to, nor required to comply with, nor required to inquire as to the performance of any obligation under, any other agreement between or bound byamong the Company and the Trustee or to which either of them is a party, and 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 any entity acting on its behalf. The Escrow Agent shall not be required to inquire into whether either to, and shall not, expend or risk any of its own funds or otherwise incur any financial liability in the Subscriber performance of any of its duties hereunder.
(e) The Escrow Agent may act upon any instrument or Company is entitled to receipt other writing provided by an Authorized Officer of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent it in good faith to be genuine genuine, and to have been be signed or presented by the proper person person, and shall not be liable in connection with the performance by it of its duties pursuant to the provisions of this Agreement, except for its own willful misconduct, bad faith or partygross negligence. The Escrow Agent shall be under no duty to inquire into or investigate the validity, without being required to determine the authenticity accuracy or correctness content of any fact stated therein such instrument or the propriety other writing. The Escrow Agent shall have no duty to solicit any payments which may be due hereunder.
(f) Any corporation or validity or the service thereof; (iv) may assume that any person believed by other entity into which the Escrow Agent in good faith its individual capacity may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to be authorized to give notice or make any statement or execute any document in connection with which the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder in its individual capacity shall be a party, or any greater degree corporation or other entity to which substantially all the corporate trust business of care than the Escrow Agent gives in its own similar property; and (vi) individual capacity may consult counsel satisfactory to Escrow Agentbe transferred, shall be the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counselunder this Agreement without further act.
(bg) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights omitted or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken loss or omitted to be taken by Escrow Agent injury resulting from its actions or any its performance or lack of them hereunder, including the reasonable fees performance of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except its duties hereunder in the case absence of gross negligence negligence, bad faith or willful misconduct on Escrow Agent's part committed in its capacity as part. In no event shall the Escrow Agent under this Agreement. 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 Company or the Trustee, any entity acting on behalf of the Company or the Trustee or any other person or entity which it reasonably believes to be genuine, (ii) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians selected by it with due care, or (iii) for an amount in excess of the value of the Escrow Collateral.
(h) The Escrow Agent shall owe a duty only 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 the Subscriber and Company under this Agreement and to no other personexecute or deliver any such document, security or endorsement.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(di) The Escrow Agent may consult with legal counsel at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date expense of the resignation Company as specified in such noticeto any matter relating to this Agreement, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction shall not incur any liability in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents acting in good faith in accordance with the clerk of any advice from such courtcounsel.
(ej) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from error of judgment made in good faith by a responsible officer of the making or retention of any investment Escrow Agent, unless it shall be proved that the Escrow Agent was negligent in accordance with this Escrow Agreementascertaining the pertinent facts.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(gk) The Escrow Agent shall be permitted to not incur any liability for not performing any act as counsel for or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation control of the Escrow Agent (including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God or war or terrorism, or the termination unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility).
(l) The Escrow Agent shall exercise the same degree of care in the custody and preservation of the Escrow Collateral in its possession as it exercises toward its own similar property and shall not be held to any higher standard of care under this Agreement, nor be deemed to owe any fiduciary duty to the Company, the Trustee, the Bondholders or any other party.
Appears in 1 contract
Sources: Escrow Deposit and Disbursement Agreement (PG&E Corp)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, exercise the same degree of care toward the Escrowed Property as it exercises toward its own similar property and shall not be required held to inquire into whether either any higher standard of care under this Agreement, nor be deemed to owe any fiduciary duty to the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; Company.
(iib) shall be obligated only for the performance of such duties as are specifically assumed by the The Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting act upon any written notice, instruction, instrument, statement, request instrument or document furnished to it hereunder and other writing believed by the Escrow Agent it in good faith to be genuine and to have been signed or presented by the proper person person, and shall not be liable to any party hereto in connection Page 7 <PAGE> with the performance of its duties hereunder, except for its own negligence, wilful misconduct or party, without being required to determine the authenticity or correctness bad faith. The duties of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent shall be determined only with reference to this Agreement and applicable laws, and the Escrow Agent is not charged with any knowledge of or any duties or responsibilities in connection with any other document or agreement. If in doubt as to its duties and responsibilities hereunder, the Escrow Agent may consult with counsel of its choice and shall be protected in any action taken or omitted in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered advice or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(bc) The Subscriber Escrow Agent may execute any of its powers or responsibilities hereunder and Company acknowledge that exercise any rights hereunder either directly or by or through its agents or attorneys.
(d) Nothing in this Agreement shall be deemed to impose upon the Escrow Agent is acting solely any duty to qualify to do business or to act as a stakeholder at their request and that agent or otherwise in any jurisdiction other than the State of Maryland.
(e) The Escrow Agent shall not be liable responsible for any action taken by Escrow Agent in good faith and believed by Escrow Agent shall not be under a duty to be authorized examine into or within pass upon the rights validity, binding effect, execution or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any sufficiency of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case any agreement amendatory or supplemental hereto or of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as any certificates delivered to it hereunder.
(f) The Escrow Agent under this Agreement. makes no representation as to the validity, value, genuineness or collectability of any security or other document or instrument held by or delivered to it.
(g) The Escrow Agent shall owe a duty only not be called upon to the Subscriber and Company under this Agreement and advise any party as to no selling or retaining, or taking or refraining from taking any action with respect to, any securities or other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities property deposited hereunder.
(dh) The Escrow Agent may shall have the right at any time to resign as Escrow Agent hereunder by giving five (5) days prior written notice of its resignation to the Subscriber and Company at the Companyaddress set forth herein or at such other address as the Company shall provide, at least 60 days prior to the date specified for such resignation to take effect. Prior to Upon the effective date of the resignation as specified in such noticeresignation, the Subscriber all cash and Company will issue to other payments and all other property then held by the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents hereunder shall be delivered by it to a substitute Escrow Agent selected by the Subscriber and Companysuccessor escrow agent. If no successor Escrow Agent escrow agent is named by the Subscriber and Companyappointed, the Escrow Agent may apply to a court of competent jurisdiction for such appointment.
(i) In the event that the Escrow Agent should at any time be confronted with inconsistent claims or demands to the Escrowed Property, the Escrow Agent shall have the right, but not the duty, to interplead the parties in any court of competent jurisdiction and request that such court determine the State respective rights of New York for appointment of the parties with respect to the Escrowed Property. In the event the Escrow Agent no longer holds any Escrowed Property, it shall be released from any obligation or liability as a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk consequence of any such courtclaims or demands.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Sources: Escrow Agreement
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of To induce the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject Agent to act hereunder, it is further agreed by the following terms and conditionsCompany that:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property Escrowed Property held by Escrow Agent it hereunder any greater degree of care than Escrow Agent it gives its own similar property; property and (vi) may consult counsel satisfactory shall not be required to invest any funds held hereunder except as directed in this Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered Agreement. Uninvested funds held hereunder shall not earn or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counselaccrue interest.
(b) The Subscriber and Company acknowledge that the This Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement expressly sets forth exclusively all the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no 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 of the Company except this Escrow Agreement.
(gc) The Escrow Agent shall not be liable, except for its own negligence or willful misconduct, and, except with respect to claims based upon such negligence or willful misconduct that are successfully asserted against the Escrow Agent, and the Company shall indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements arising out of and in connection with this Escrow Agreement other than as a result of the Escrow Agent's negligence or willful misconduct. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any 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 gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be permitted entitled to act as counsel for rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the Subscriber in authenticity or the correctness of any dispute as to fact stated therein or the disposition propriety or validity of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the service thereof. The Escrow Agent is then holding the Company Documents may act in reliance upon an instrument or signature believed by it in good faith to be genuine and Subscriber Documents and continues may assume, if in good faith, that any person purporting to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent give notice or the termination of this Agreement.receipt or advice or make any statement or
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of Notwithstanding any provision contained herein to the contrary, the Escrow Agent. The Escrow Agent's duties , including its officers, directors, employees and responsibilities shall be subject to the following terms and conditionsagents, shall:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent or omitted under this Agreement so long as it shall have acted in good faith and believed by Escrow Agent without gross negligence;
(b) have no responsibility to inquire into or determine the genuineness, authenticity, or sufficiency of any securities, checks, or other documents or instruments submitted to it in connection with its duties hereunder;
(c) be entitled to deem the signatories of any documents or instruments submitted to it hereunder as being those purported to be authorized to sign such documents or within instruments on behalf of the rights parties hereto, and shall be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and without requiring substantiating evidence of any kind;
(d) be entitled to refrain from taking any action contemplated by this Agreement in the event that it becomes aware of any disagreement between the parties hereto as to any facts or powers conferred as to the happening of any contemplated event precedent to such action;
(e) have no responsibility or liability for any diminution in value of any assets held hereunder which may result from any investments or reinvestment made in accordance with any provision which may be contained herein;
(f) be entitled to compensation for its services hereunder as per Schedule 2 attached hereto (which compensation is payable upon execution of this Agreement), which is made a part hereof, and for reimbursement of its reasonable out-of-pocket expenses including, but not by way of limitation, the reasonable fees and costs of attorneys or agents which it may find necessary to engage in performance of its duties hereunder, all of which compensation and expenses shall be paid one-half by Parent and one-half severally by the Sellers (but no portion of which compensation and expenses shall be paid from the Escrow Fund);
(g) be, and hereby is, indemnified and saved harmless by Parent and the Sellers from all losses, liabilities, costs and expenses, including reasonable attorney fees and expenses, which may be incurred by it as a result of its acceptance of the Escrow Fund or arising from the performance of its duties hereunder (which indemnification obligations shall be borne one-half by Parent and one-half severally by the Sellers, but no portion of which indemnification obligations shall be paid from the Escrow Fund), unless such losses, liabilities, costs and expenses shall have been finally adjudicated to have resulted from the bad faith or gross negligence of the Escrow Agent, and such indemnification shall survive its resignation or removal, or the termination of this Agreement;
(h) in the event that (i) any dispute shall arise between the parties with respect to the disposition or disbursement of any of the assets held hereunder, or (ii) the Escrow Agent shall be uncertain as to how to proceed in a situation not explicitly addressed by the terms of this Agreement whether because of conflicting demands by the other parties hereto or otherwise, be permitted to interplead all of the assets held hereunder into a court of competent jurisdiction, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets. The parties hereto other than the Escrow Agent further agree to pursue any redress or recourse in connection with such a dispute, without making the Escrow Agent a party to same;
(i) have only those duties as are specifically provided herein, which shall be deemed purely ministerial in nature, and shall under no circumstance be deemed a fiduciary for any of the parties to this Agreement. The Subscriber Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of the terms and Companyconditions of any other agreement, jointly instrument or document between the other parties hereto, in connection herewith. This Agreement sets forth all matters pertinent to the escrow contemplated hereunder, and severally, agree to indemnify and hold harmless no additional obligations of the Escrow Agent shall be inferred from the terms of this Agreement or any other agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION;
(j) have the right, upon written notice to the Owners’ Representative and any Parent, but not the obligation, to consult with counsel of Escrow Agent's partners, employees, agents choice and representatives shall not be liable for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel feesin accordance with the advice of such counsel; and
(k) have the right, upon written notice to the Owners’ Representative and Parent, to the extent authorized hereunder and incurred in connection with the performance perform any of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Companythrough agents, attorneys, custodians or nominees. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, Any banking association or corporation into which the Escrow Agent may apply to a court of competent jurisdiction in be merged or converted or with which the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have may be consolidated, or any interest in corporation resulting from any merger, conversion or consolidation to which the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for a party, or any loss resulting from banking association or corporation to which all or substantially all of the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties corporate trust business of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The transferred, shall succeed to all the Escrow Agent shall be permitted to Agent’s rights, obligations and immunities hereunder without the execution or filing of any paper or any further act as counsel for on the Subscriber in part of any dispute as of the parties hereto, anything herein to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereundercontrary notwithstanding.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1To induce the Escrow Agent to act hereunder, it is further agreed by each of the Seller and FGC that:
(i) 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 funds held hereunder except as directed in this Agreement.
(ii) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. Duties and Responsibilities of No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent's duties and responsibilities Agent shall not be subject to bound by the following terms and conditions:provisions of any agreement among the other parties hereto except this Agreement.
(aiii) The Subscriber Escrow Agent shall not be liable, except for its own gross negligence, willful misconduct or breach of any representations, warranties or covenants contained in this Agreement, and, except with respect to claims based upon such gross negligence, willful misconduct or breach that are successfully asserted against the Escrow Agent, the other parties hereto shall jointly and Company acknowledge severally indemnify and agree that hold harmless the Escrow Agent (iand any successor Escrow Agent) shall not be responsible for or bound byfrom and against any and all losses, liabilities, claims, actions, damages, and shall not be required to inquire into whether either expenses, including reasonable attorneys' fees and disbursements, arising out of, and in connection with, this Agreement. Without limiting the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant toforegoing, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in
(iiiiv) may rely on and The Escrow Agent shall be protected in acting or refraining from acting entitled to rely upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume that act in reliance upon any person instrument or signature believed by the Escrow Agent it in good faith to be authorized genuine and may assume, if in good faith, 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 is so authorized; has been duly authorized to do so.
(v) shall not be under any duty to give the property held by The Escrow Agent hereunder may act pursuant to the advice of counsel with respect to any greater degree of care than matter relating to this Escrow Agent gives its own similar property; Agreement and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken or omitted in good faith and in accordance with such advice.
(vi) The Escrow Agent does not have any interest in the Escrowed Funds deposited hereunder, but is serving as escrow holder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. This paragraph (vi) and paragraph (iii) of this Article V shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(vii) The Escrow Agent makes no representation as to the validity, value, genuineness, or the collectibility of any security or other documents or instrument held by, or delivered to, it.
(viii) 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.
(ix) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by FGC and the Seller or at any time may resign by giving written notice to such effect to FGC and the Seller. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (A) the appointment of a successor (including a court of competent jurisdiction) or (B) the day that is 30 days after the date of delivery: (1) to the Escrow Agent of the other parties' notice of termination or (2) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or an enforceable order of a court of competent jurisdiction.
(x) T 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.
(xi) In the event of any disagreement among or between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to rtoain the Escrowed Property until the Escrow Agent shall have received (A) a final and believed non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (B) a written agreement executed by the other parties hereto directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (A) above shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber effect that said court order is final and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementnon-appealable. The Escrow Agent shall owe a duty only to the Subscriber act on such court order and Company under this Agreement and to no other personlegal opinions without further question.
(cxii) The Subscriber As consideration for its agreement to act as Escrow Agent as herein described, FGC shall pay the Escrow Agent fees determined in accordance with the terms set forth on Exhibit A hereto (and Company jointly made a part of this Escrow Agreement as if herein set forth). In addition, FGC and severally the Seller agree to reimburse the Escrow Agent for all reasonable outside counsel feesexpenses, to disbursements, and advances incurred or made by the extent authorized hereunder and incurred Escrow Agent in connection with the performance of its duties hereunder (including reasonable fees, expenses, and responsibilities hereunderdisbursements of its counsel) and to share equally the costs thereof.
(dxiii) The Escrow Agent may at No publicly distributed material or other matter in any time resign as Escrow Agent hereunder by giving five language (5including, without limitation, notices and reports) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to which mentions the Escrow Agent a Joint Instruction authorizing delivery of Agent's name or the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Companyrights, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agentpowers, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderfirst have given its specific written consent thereto.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that Vendor agrees to pay or reimburse the Escrow Agent (i) shall not be responsible upon request for all expenses, disbursement and advances incurred or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed made by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; carrying out their duties hereunder, including, without limitation, trading commissions and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full fees and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counselreasonable legal fees.
(b) The Subscriber Escrow Agent shall prepare and Company acknowledge that deliver to the Purchaser and the Vendor within ten Business Days after the end of each calendar month prior to termination of this Escrow Agreement a written account describing all transactions with respect to the Escrow Fund during such calendar month.
(c) The Vendor and the Purchaser agree jointly and severally to indemnify the Escrow Agent is acting solely as a stakeholder at their request for, and that to hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Escrow Agent shall not be liable for any action taken by arising out of or in connection with them entering into this Escrow Agent in good faith Agreement and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them carrying out their duties hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreementof liability. Notwithstanding the foregoing, except in as between the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only Vendor and the Purchaser, any indemnity to the Subscriber and Company under this Agreement and be paid to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, pursuant to the extent authorized hereunder preceding sentence shall be borne by the Vendor and incurred Purchaser jointly and severally, provided that any such indemnity to be paid in connection with respect of expenses, disbursements or advances referred to in Clause 8(a) hereof shall be borne by the performance of its duties and responsibilities hereunderVendor.
(d) The Escrow Agent may at any time resign as duties and responsibilities of the Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected shall be determined solely by the Subscriber and Company. If no successor express provisions of this Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow AgentAgreement, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtno further duties or responsibilities shall be implied.
(e) The Escrow Agent does not have may act upon any instrument or other writing provided by a duly authorised officer of any of the Vendor and will not have any interest the Purchaser as named in the Company Documents Schedule hereto believed by it in good faith to be genuine, and Subscriber Documentsto be signed or presented by the proper person as named in the Schedule hereto, but is serving only as escrow agent, having only possession thereof. The Escrow Agent and shall not be liable for any loss resulting from in connection with the making or retention performance by it of any investment in accordance with its duties pursuant to the provisions of this Escrow Agreement, except for its own wilful misconduct or gross negligence.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Krug International Corp)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of Notwithstanding any provision contained herein to the contrary, the Escrow Agent. The Escrow Agent's duties , including its officers, directors, employees and responsibilities shall be subject to the following terms and conditionsagents, shall:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent or omitted under this Agreement so long as it shall have acted in good faith and believed by Escrow Agent without gross negligence;
(b) have no responsibility to inquire into or determine the genuineness, authenticity, or sufficiency of any securities, checks, or other documents or instruments submitted to it in connection with its duties hereunder;
(c) be entitled to deem the signatories of any documents or instruments submitted to it hereunder as being those purported to be authorized to sign such documents or within instruments on behalf of the rights parties hereto, and shall be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and without requiring substantiating evidence of any kind;
(d) be entitled to refrain from taking any action contemplated by this Agreement in the event that it becomes aware of any disagreement between the parties hereto as to any facts or powers conferred upon as to the happening of any contemplated event precedent to such action;
(e) have no responsibility or liability for any diminution in value of any assets held hereunder which may result from any investments or reinvestment made in accordance with any provision which may be contained herein;
(f) be entitled to compensation for its services hereunder as per Exhibit B attached hereto, which is made a part hereof, and for reimbursement of its out-of-pocket expenses including, but not by way of limitation, the fees and costs of attorneys or agents which it may find necessary to engage in performance of its duties hereunder, all to be paid equally by the Company and Purchaser, and the Escrow Agent shall have, and is hereby granted, a prior lien upon any property, cash, or assets of the Escrow Account, with respect to its unpaid fees, non-reimbursed expenses and unsatisfied indemnification rights, superior to the interests of any other persons or entities;
(g) be entitled and is hereby granted the right to set off and deduct any unpaid fees, non-reimbursed expenses or unsatisfied indemnification rights from amounts on deposit in the Escrow Account;
(h) be under no obligation to invest the deposited funds or the income generated thereby until it has received a Form W-9 or W-8, as applicable, from the Company and Purchaser, regardless of whether such party is exempt from reporting or withholding requirements under the Internal Revenue Code of 1986, as amended;
(i) be, and hereby is, severally but not jointly indemnified and saved harmless by the Company and Purchaser from any and all losses, liabilities, claims, proceedings, suits, demands, penalties, costs and expenses, including without limitation fees and expenses of outside and internal counsel and experts and their staffs and all expenses of document location, duplication and shipment and of preparation to defend any of the foregoing (“Losses”), which may be incurred by it as a result of its execution, delivery or performance of this Agreement, unless such Losses shall have been finally adjudicated to have been primarily caused by the bad faith or gross negligence of the Escrow Agent, and the provisions of this section shall survive the resignation or removal of the Escrow Agent and the termination of this Agreement;
(j) in the event that (i) any dispute shall arise between the parties with respect to the disposition or disbursement of any of the assets held hereunder or (ii) the Escrow Agent shall be uncertain as to how to proceed in a situation not explicitly addressed by the terms of this Agreement whether because of conflicting demands by the other parties hereto or otherwise, the Escrow Agent shall be permitted to interplead all of the assets held hereunder into a court of competent jurisdiction, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets. The parties hereto other than the Escrow Agent further agree to pursue any redress or recourse in connection with such a dispute, without making the Escrow Agent a party to same;
(k) have only those duties as are specifically provided herein, which shall be deemed purely ministerial in nature, and shall under no circumstance be deemed a fiduciary for any of the parties to this Agreement. The Subscriber Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of the terms and Companyconditions of any other agreement, jointly instrument or document between the other parties hereto, in connection herewith, including without limitation the Purchase Agreement. This Agreement sets forth all matters pertinent to the escrow contemplated hereunder, and severally, agree to indemnify and hold harmless no additional obligations of the Escrow Agent shall be inferred from the terms of this Agreement or any other Agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION;
(l) have the right, but not the obligation, to consult with counsel of choice and any of Escrow Agent's partners, employees, agents and representatives shall not be liable for any action taken or omitted to be taken by Escrow Agent or any in good faith in accordance with the advice of them hereunder, including such counsel; if the reasonable fees Escrow Agent becomes involved in litigation on account of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except it shall have the right to retain counsel and shall have a first lien on the property deposited hereunder for any and all costs, attorneys’ fees, charges, disbursements, and expenses in connection with such litigation; and shall be entitled to reimburse itself therefor out of the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent property deposited hereunder, and if it shall owe a duty only be unable to reimburse itself from the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company property deposited hereunder, the parties hereto jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue pay to the Escrow Agent a Joint Instruction authorizing delivery on demand its reasonable charges, counsel and attorneys’ fees, disbursements, and expenses in connection with such litigation; and
(m) have the right to perform any of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Companyits duties hereunder through agents, attorneys, custodians or nominees. If no successor Escrow Agent is named by the Subscriber and Company, Any banking association or corporation into which the Escrow Agent may apply to a court of competent jurisdiction in be merged, converted or with which the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have may be consolidated, or any interest in corporation resulting from any merger, conversion or consolidation to which the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for a party, or any loss resulting from banking association or corporation to which all or substantially all of the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties escrow business of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The transferred, shall succeed to all the Escrow Agent shall be permitted to Agent’s rights, obligations and immunities hereunder without the execution or filing of any paper or any further act as counsel for on the Subscriber in part of any dispute as of the parties hereto, anything herein to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereundercontrary notwithstanding.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Purchaser and the Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber Purchaser or the Company is entitled to receipt of the Company Documents and Subscriber Purchaser Documents pursuant to, to any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice or make any statement or execute any document in connection with the provisions hereof is so authorizedhas been duly authorized to do so; (v) shall not be responsible for the identity, authority or rights of any person, firm or corporation executing or delivering or purporting to execute or deliver this Escrow Agreement or any document deposited hereunder or any endorsement thereon or assignment thereof; (vi) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vivii) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber Purchaser and the Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber Purchaser and the Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber Purchaser and Company under this Agreement and to no other person.
(c) The Subscriber Purchaser and the Company jointly and severally agree to reimburse the Escrow Agent for its reasonable outside out-of-pocket expenses (including counsel fees, to the extent authorized hereunder and ) incurred in connection with the performance of its duties and responsibilities hereunderhereunder not to exceed $1,500.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber Purchaser and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber Purchaser and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Purchaser Documents to a substitute Escrow Agent selected by the Subscriber Purchaser and the Company. If no successor Escrow Agent is named by the Subscriber Purchaser and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Purchaser Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Purchaser Documents, but is serving only as escrow agent, having only possession thereof. .
(f) The Escrow Agent shall not be liable for any loss resulting from action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby or within the making rights or retention of any investment powers conferred upon it hereunder, nor for action taken or omitted by it in good faith, and in accordance with this advice of counsel (which counsel may be of the Escrow AgreementAgent's own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind except for its own willful misconduct or gross negligence.
(fg) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(gh) The Escrow Agent shall be permitted to act as counsel for the Subscriber Purchaser or the Company, as the case may be, in any dispute as to the disposition of the Company Documents and Subscriber Purchaser Documents, in any other dispute between among the Subscriber Purchaser and Company which is unrelated to the Escrow AgreementCompany, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Purchaser Documents and continues to act as the Escrow Agent hereunder.
(hi) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property Escrow Funds held by Escrow Agent it hereunder any greater degree of care than Escrow Agent it gives its own similar property; property and (vi) may consult counsel satisfactory shall not be required to Escrow Agent, the opinion of such counsel invest any funds held hereunder except as directed pursuant to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counselSection 5 herein.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement expressly sets forth exclusively all the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no 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 other agreement among the 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 other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney’s fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any Escrow Funds held by it hereunder in good faith, in accordance with the terms hereof, including, without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Funds, or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely upon any arbitration award, order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the reasonable advice of counsel with respect to any matter relating to this Agreement and, except for its own gross negligence or willful misconduct, the Escrow Agent shall not be liable for any action taken or omitted in accordance with such advice.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Funds deposited hereunder. Any payments of income from this Agreement shall be subject to withholding regulations then in force with respect to United States Taxes. The parties hereto will provide the Escrow Agent with appropriate W-9 or other applicable forms for tax identification number certification or nonresident alien certifications. This Section 6(f) and Section 6(c) herein shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute makes no representation as to the disposition validity, value, genuineness or the collectibility of the Company Documents and Subscriber Documents, in any security or other dispute between the Subscriber and Company which is unrelated documents or instrument held by or delivered to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderit.
(h) The provisions Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Section 4.1 shall survive the Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction), or (ii) the day which is thirty (30) days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent’s sole responsibility after that time shall be to safekeep the Escrow Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or an Order.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the court or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Funds until the Escrow Agent shall have received (i) an order of a court of competent jurisdiction directing delivery of the Escrow Funds (an “Order”) or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Funds, in which event the Escrow Agent shall disburse the Escrow Funds in accordance with such Order or agreement. The Escrow Agent shall act on such Order without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) That it shall be under no obligation to act, except under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) That it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the District Court of the City and County of Denver, State of Colorado, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 6(c) above. The right of the Escrow Agent to file such an interpleader action shall not alter the fact that the dispute shall be resolved by arbitration by the American Arbitration Association as provided in the Supply Agreement.
(m) Buyer and Sellers agree to each pay 50% the Escrow Agent’s compensation for the services hereunder, which is an aggregate of $1,000 per year. All reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel), shall be paid by Buyer.
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent’s name or the termination rights, powers or duties of this Agreementthe 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.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent2.1. The Escrow Agent's Agent shall not be entitled to a fee for its services hereunder.
2.2. The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving notice of such resignation to the Purchaser and responsibilities the Sellers' Representative specifying a date (not less than 30 days after the giving of such notice) when such resignation shall take effect. Promptly after such notice, a successor escrow agent shall be subject appointed by mutual agreement of the Purchaser and the Sellers' Representative, such successor escrow agent to become Escrow Agent hereunder upon the following terms resignation date specified in such notice. If the Purchaser and conditions:
(a) The Subscriber and Company acknowledge and the Sellers's Nominee are unable to agree that upon a successor escrow agent within 30 days after such notice, the Escrow Agent (i) shall not be responsible for or bound by, continued to serve until a successor accepts the escrow and shall not be required receives the Escrow Property. The Purchaser and the Seller's Nominee may agree at any time to inquire into whether either substitute a new escrow agent by giving notice thereof to the Subscriber or Company is entitled Escrow Agent then acting.
2.3. The Escrow Agent undertakes to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated perform only for the performance of such duties as are specifically assumed set forth herein. The Escrow Agent, acting or refraining from acting in good faith, shall not be liable for any mistake of fact or error of judgment by the Escrow Agent pursuant it or for any acts or omissions by it of any kind, unless caused by willful misconduct or gross negligence, and shall be entitled to this Agreement; (iii) may rely on rely, and shall be protected in acting or refraining from acting doing so, upon (a) any written notice, instruction, instrument, statement, request or document furnished to it hereunder and signature believed by the Escrow Agent in good faith to it be genuine and to have been signed or presented by the proper person party or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be parties duly authorized to give notice do so, or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that advice of counsel (which may be of the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementown choosing). The Escrow Agent shall owe a duty have no responsibility for the contents of any writing submitted to it hereunder and shall be entitled in good faith to rely without any liability upon the contents thereof.
2.4. Each party (in the case of the Sellers, only to the Subscriber extent of their Purchase Price, except to ▇▇▇▇ and Company under this Agreement and Rind, to whom no other person.
(c) The Subscriber and Company jointly and severally agree such limitation applies), agrees to reimburse indemnify the Escrow Agent for and hold it harmless against any and all liabilities incurred by it hereunder as a consequence of such party's actions (including reasonable outside counsel feeslegal fees and expenses), and the parties further agree, subject to the above limitation, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to indemnify the Escrow Agent and hold it harmless against any and all liabilities incurred by it hereunder that are not a Joint Instruction authorizing delivery consequence of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected their respective action, except in either case for liabilities incurred by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtresulting from its own willful misconduct or gross negligence.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof2.5. The Escrow Agent shall not be liable for any loss resulting prevented from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act acting as counsel for the Subscriber in any dispute as to the disposition Sellers as a result of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act serving as the Escrow Agent hereunder.
(h) The provisions 2.6. Anything in the foregoing to the contrary notwithstanding, at the sole discretion of this Section 4.1 shall survive the resignation Escrow Agent, said Escrow Agent may, at any time, deposit the Escrow Property with a court selected by the Escrow Agent and upon such event, all liability and responsibility of the Escrow Agent or the termination of this Agreementshall terminate upon such deposit.
Appears in 1 contract
Sources: Escrow Agreement (Ruskin Moscou Evans & Faltischek Pc/Fa)
Concerning the Escrow Agent. 4.1To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Duties Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and Responsibilities of all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent's duties and responsibilities Agent shall not be subject to bound by the following terms and conditions:provisions of any agreement among the other parties hereto except this Escrow Agreement.
(ac) The Subscriber 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, and Company acknowledge the other parties hereto shall jointly and agree that severally indemnify and hold harmless the Escrow Agent (iand any successor Escrow Agent) shall not be responsible for or bound byfrom and against any and all losses, liabilities, claims, actions, damages and shall not be required to inquire into whether either expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant toforegoing, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; 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 (iiinot resulting from gross negligence or willful misconduct) may rely on and in the investment or reinvestment of the Escrowed Property.
(d) The Escrow Agent shall be protected in acting or refraining from acting entitled to rely upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume that act in reliance upon any person instrument or signature believed by the Escrow Agent it in good faith to be authorized genuine and may assume, if in good faith, 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 is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counseldo so.
(be) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and that the Escrow Agent shall not be liable for any action taken by Escrow Agent or omitted in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other personaccordance with such advice.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(ef) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, Escrowed Property deposited hereunder but is serving only as escrow agent, having only possession thereofholder only. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of parties hereto will provide the Escrow Agent with respect to appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications. This paragraph (f) and paragraph (c) of this Section 7 shall survive notwithstanding any and all matters pertinent thereto and no implied duties termination of this Escrow Agreement or obligations shall be read into this Agreementthe resignation of the Escrow Agent.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute makes no representation as to the disposition validity, value, genuineness or the collectibility of the Company Documents and Subscriber Documents, in any security or other dispute between the Subscriber and Company which is unrelated document or instrument held by or delivered to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderit.
(h) The provisions Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Section 4.1 shall survive the Escrow Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(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 among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the subscribers directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above 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 court order and legal opinion without further question.
(l) As consideration for its agreement to act as Escrow Agent as herein described, the Company agrees to pay the Escrow Agent fees determined in accordance with the terms set forth on Exhibit E hereto (made a part of this Escrow Agreement as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(m) The other parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, notices, reports and promotional material) which mentions the Escrow Agent's name or the termination rights, powers, or duties of this Agreementthe Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto. The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1(a) The Escrow Agent shall not be required to invest any funds held hereunder except as directed pursuant to Section 3 of this Escrow Agreement. Duties Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and Responsibilities of 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 Escrow Agreement. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:are ministerial in nature.
(ac) The Subscriber 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 other parties hereto shall jointly and Company acknowledge severally indemnify and agree that hold harmless the Escrow Agent (iand any successor Escrow Agent) shall not be responsible for from and against any and all losses, liabilities, claims, actions, taxes, damages and expenses, including reasonable costs of investigation, attorneys' fees and disbursements, arising out of or bound byin connection with this Escrow Agreement including the legal costs and expenses of defending itself against any claim or liability in connection with its performance hereunder. Without limiting the foregoing, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant 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, or as a result of any liquidation of any such investment prior to this Agreement; its maturity, including any liability for any delays (iiinot resulting from its gross negligence or willful misconduct) may rely on and in the investment or reinvestment of the Escrowed Funds, or any loss of interest incident to any such delays or for the failure of the parties to give the Escrow Agent any instructions to invest or reinvest the escrowed funds or any earnings thereon. The Escrow Agent shall be protected under no duty to institute any suit, or to take any remedial procedures under this Escrow Agreement, or to enter any appearance or in acting or refraining from acting any way defend any suit in which it may be made a defendant hereunder until it shall be indemnified as provided above.
(d) The Escrow Agent shall be entitled to rely upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) . The Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counseldo so.
(be) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other personaccordance with such advice.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(ef) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, Escrowed Shares or Escrowed Funds deposited hereunder but is serving only as escrow agent, agent only and having only possession thereof. The Any payments of income from this Escrow Agreement shall be subject to withholding regulations then in force with respect to United States taxes. Parent and Stockholder Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of provide the Escrow Agent with appropriate W-9 forms for tax identification, number certification, or nonresident alien certifications as the Escrow Agent may reasonably require (collectively, "Tax Reporting Documentation") to comply with its tax reporting obligations. Unless and until the Escrow Agent has received all Tax Reporting Documentation with respect to any Stockholder on behalf of whom the Escrow Agent is required to make a payment, the Escrow Agent may withhold such amount as backup withholding (currently 31%) and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreementother amounts as required by applicable law, from any such payment to cover such Stockholder's payment liability.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute makes no representation as to the disposition validity, value, genuineness or the collectability of the Company Documents and Subscriber Documents, in any security or other dispute between the Subscriber and Company which is unrelated documents or instrument held by or delivered to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderit.
(h) The provisions 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 Shares and the Escrowed Funds, subject to Section 4(l), to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Section 4.1 shall survive the Escrow Agreement. The resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the termination day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto provided that, if no successor Escrow Agent shall have been appointed on the effective date of the resignation of the resigning Escrow Agent hereunder, the resigning Escrow Agent may deliver the Escrowed Shares and the Escrowed Funds into a court of competent jurisdiction pursuant to Section 4(q) and thereupon shall be fully relieved and discharged of any further duties hereunder. The resigning Escrow Agent shall be entitled to payment of any unpaid fees (which shall be pro-rated as of the effective date of the resignation) and expenses and to reimbursement by Parent for any reasonable expenses incurred in connection with the transfer of the Escrowed Shares and the Escrowed Funds pursuant to and in accordance with the provisions of this section. If at that time the Escrow Agent has not delivered the Escrowed Shares and the Escrowed Funds into a court of competent jurisdiction or received a designation of a successor Escrow Agent, the Escrow Agent's sole responsibility after that time shall be to safekeep the Escrowed Shares and the Escrowed Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final and nonappealable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any court order and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between Purchaser and any Stockholder resulting in adverse claims or demands being made in connection with the Escrowed Shares or Escrowed Funds, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Shares or Escrowed Funds until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrowed Shares or Escrowed Funds or (ii) a written agreement executed by Purchaser and Stockholder Agent directing delivery of the Escrowed Shares or Escrowed Funds, in which event the Escrow Agent shall disburse the Escrowed Shares or Escrowed Funds in accordance with such order or agreement. The Escrow Agent shall act on such court order without further question.
(l) The Escrow Agent shall be paid as set forth on Exhibit A hereto and shall be reimbursed for the fees and disbursements of its attorneys by Parent or, at the request to the Escrow Agent, Parent shall pay such fees and disbursements directly to its attorneys promptly following execution of this Escrow Agreement. All fees and payments shall be paid in United States currency and payable in the United States at the office of the Escrow Agent.
(m) As security for the timely and full payment and satisfaction of all of the present and future obligations of the parties to the Escrow Agent under this Agreement, including without limitation the indemnity obligations under Section 4(c), whether joint or several, each of the Stockholders, the Stockholder Agent and Parent hereby grants to the Escrow Agent a continuing security interest in and to any and all of the Escrowed Shares and Escrowed Funds, whether now existing or hereafter acquired or created, together with the products and proceeds thereof, all payments and other distributions with respect thereto, and any and all investments, renewals, substitutions, modifications and extensions of any and all of the foregoing. The Escrow Agent shall have all of the rights and remedies of a secured party under the Uniform Commercial Code. In addition, in the event the Escrow Agent has not received any payment, indemnity, reimbursement or other amount due it under this Agreement, then, notwithstanding any other term or provision of this Agreement, the Escrow Agent may in its discretion set off and apply so much of the Escrowed Shares and Escrowed Funds as is required to pay and satisfy those obligations. Notwithstanding any obligation to make payments and deliveries hereunder, in addition to its rights under Section 4(c), the Escrow Agent may retain and hold for such time as it reasonably deems necessary such amount of the Escrowed Shares and Escrowed Funds as it shall from time to time reasonably deem sufficient to indemnify itself for any such loss or expense and for any amounts due it under Section 4(c).
(n) In the event any amount of Escrowed Shares and Escrowed Funds released to a party under this Agreement is invalidated, declared to be fraudulent or preferential or must otherwise be restored or returned by the Escrow Agent in connection with the insolvency, bankruptcy or reorganization of such party, whether by order of or settlement before any court or other authority or otherwise, such party shall contribute back to the Escrow Agent an amount (in cash or stock) such that such party will be affected by that invalidation, declaration, restoration or return ratably in proportion to the distributions it received under this Agreement, together with any related assignment, release or other instrument or document the Escrow Agent may request to restore the status quo ante.
(o) To the extent that the Escrow Agent becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder (collectively, the "Taxes"), the Escrow Agent may pay such Taxes. The Escrow Agent may withhold from any payment of the Escrowed Shares and Escrowed Funds such amount as the Escrow Agent estimates to be sufficient to provide for the payment of such Taxes not yet paid, and may use the sum withheld for that purpose. The Escrow Agent shall be indemnified and held harmless against any liability for Taxes and for any penalties or interest in respect of Taxes on such investment income or payments in the manner provided in Section 4(c). Notwithstanding the foregoing, Taxes shall not include any income, franchise or other similar taxes imposed on (or measured by) the net income of the Escrow Agent.
(p) Unless specifically required by this Agreement or by law, Escrow Agent shall not be required to give any bond or surety or report to any court despite any custom to the contrary and the Escrow Agent, if required to give any such bond or surety, shall have a lien against the Escrowed Shares and Escrowed Funds in the amount thereof; and the Escrow Agent shall not be required to take notice or be deemed to have notice of any default or other fact or event under this Agreement unless Escrow Agent shall be notified in writing of such default, fact or event.
(q) In the event Escrow Agent becomes a party to a litigation by reason hereof it is hereby authorized to deposit with the clerk of the court in which the litigation is pending, any and all Escrowed Shares and Escrowed Funds, or other property held by it pursuant hereto, less its fees, expenses and advances, and thereupon shall stand fully relieved and discharged of any further duties hereunder. Also, in the event Escrow Agent is threatened to be made a party to a litigation by reason hereof, or receives conflicting demands or instructions with respect to the Escrow Deposit it is hereby authorized to implead all interested parties in any court of competent jurisdiction and to deposit with the clerk of such court any such Escrowed Shares and Escrowed Funds, or other property held by it pursuant hereto, less its fees, expenses and advances, and thereupon shall stand fully relieved and discharged of any further duties hereunder.
(r) Except as expressly provided herein, the Escrow Agent shall have no responsibility for reporting to or filing with any governmental or regulatory agency or entity on behalf of any party hereto.
Appears in 1 contract
Sources: Escrow Agreement (WRC Media Inc)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for have no duties or bound by, responsibilities except those expressly set forth herein. The Escrow Agent may consult with counsel and shall not be required to inquire into whether either the Subscriber have no liability hereunder except for its own gross negligence or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) willful misconduct. It may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrumentcertificate, statement, request request, consent, confirmation, agreement or document furnished to other instrument which it hereunder and believed by the Escrow Agent in good faith reasonably believes to be genuine and to have been signed or presented by the a proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counselpersons.
(b) The Subscriber and Company acknowledge that Escrow Agent shall have no duties with respect to any agreement or agreements with respect to any or all of the Escrow Agent is acting solely Funds other than as a stakeholder at their request provided in this Agreement. In the event that any of the terms and that provisions of any other agreement between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control in all respects. Notwithstanding any provision to the contrary contained in any other agreement, the Escrow Agent shall not be liable for any action taken by have no interest in the Escrow Agent Funds except as provided in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse So long as the Escrow Agent for reasonable outside counsel fees, shall have any obligation to pay any amount to the extent authorized hereunder Redeeming Stockholders and/or CII from the Escrow Funds hereunder, the Escrow Agent shall keep proper books of record and incurred account, in connection with which full and correct entries shall be made of all receipts, disbursements and investment activity in the performance of its duties and responsibilities hereunderEscrow Account.
(d) The Escrow Agent may at shall not be bound by any time resign as Escrow Agent hereunder by giving five (5) days prior written notice modification of resignation to this Agreement affecting the Subscriber rights, duties and the Company. Prior to the effective date obligations of the resignation as specified Escrow Agent, unless such modification shall be in such noticewriting and signed by the other parties hereto, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute shall have given its prior written consent thereto. The Escrow Agent selected shall not be bound by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, any other modification of this Agreement unless the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtshall have received written notice thereof.
(e) The Escrow Agent does may resign as escrow agent at any time by giving thirty (30) days written notice by registered or certified mail to CII and a Redeeming Stockholders' Representative and such resignation shall take effect at the end of such 30 days or upon earlier appointment of a successor. A successor escrow agent hereunder may be appointed by designation in writing signed by CII and a Redeeming Stockholders' Representative. CII and the Redeeming Stockholders' Representatives undertake to utilize their best efforts to arrange for the appointment of a successor escrow agent. If any instrument of acceptance by a successor escrow agent shall not have been delivered to the Escrow Agent within sixty (60) days after the giving of such notice of resignation, the resigning Escrow Agent may at the expense of the Redeeming Stockholders and will not have CII petition any interest in court of competent jurisdiction for the Company Documents and Subscriber Documents, but is serving only as appointment of a successor escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively If at any time hereafter the duties Escrow Agent shall resign, be removed, be dissolved or otherwise become incapable of acting, or the bank or trust company acting as the Escrow Agent shall be taken over by any government official, agency, department or board, or the position of the Escrow Agent with respect shall become vacant for any of the foregoing reasons or for any other reason, a Redeeming Stockholders' Representative and CII shall appoint a successor escrow agent to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreementfill such vacancy.
(g) The Escrow Agent Every successor escrow agent appointed hereunder shall execute, acknowledge and deliver to its predecessor, and also to CII and a Redeeming Stockholders' Representative, an instrument in writing accepting such appointment hereunder, and thereupon such successor escrow agent, without any further act, shall become fully vested with all the rights, immunities and powers and shall be permitted subject to act as counsel for the Subscriber in any dispute as to the disposition all of the Company Documents duties and Subscriber Documentsobligations, in any other dispute between the Subscriber of its predecessor; and Company which is unrelated every predecessor escrow agent shall deliver all property and moneys held by it hereunder to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderits successor.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Sources: Indemnification and Escrow Agreement (Kilovac International Inc)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Company, MCI and Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Company, MCI and Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber Company, MCI and CompanySubscriber, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the The Company, MCI and Subscriber and Company under this Agreement and to no other person.
(c) The Company, MCI and Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the The Company, MCI and Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber The Company, MCI and CompanySubscriber. If no successor Escrow Agent is named by the Subscriber The Company, MCI and CompanySubscriber, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber The Company, MCI and Company which is unrelated to the Escrow AgreementSubscriber, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1To induce the Escrow Agent to act --------------------------- hereunder, it is further agreed by the Company and Placement Agent that:
(a) The Escrow Agent shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Duties Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and Responsibilities of all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent's duties and responsibilities Agent shall not be subject to bound by the following terms and conditions:provisions of any agreement among the other parties hereto except this Escrow Agreement.
(ac) The Subscriber Escrow Agent shall not be liable 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 other parties hereto shall jointly and Company acknowledge severally indemnify and agree that hold harmless the Escrow Agent (iand any successor Escrow Agent) shall not be responsible for or bound byfrom and against any and all losses, liabilities, claims, actions, damages and shall not be required to inquire into whether either expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant toforegoing, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant 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 gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to this Agreement; any such delays.
(iiid) may rely on and The Escrow Agent shall be protected in acting or refraining from acting entitled to rely upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Company or the Placement Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume that act in reliance upon any person instrument or signature believed by the Escrow Agent it in good faith to be authorized genuine and may assume, if in good faith, 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 is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counseldo so.
(be) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and that the Escrow Agent shall not be liable for any action taken by Escrow Agent or omitted in good faith and believed in accordance with such advice.
(f) The Escrow Agent does not have, for tax reporting purposes, any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. The parties hereto agree that, for tax reporting purposes, all interest or other income earned from the investment of the Escrowed Property or any portion thereof in any tax year (i) to the extent such interest or other income is distributed by the Escrow Agent to any person or entity pursuant to the terms of this Escrow Agreement during such tax year, shall be authorized reported as allocated to such person or within entity, and (ii) otherwise shall be reported as allocated to the rights or powers conferred upon subscribers, in proportion to their respective Subscription Payment as set forth on Exhibit A hereto.
(g) Any payments of income from the Escrow Agent by this AgreementAccount shall be subject to withholding regulations then in force with respect to United States taxes. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications.
(h) This paragraph (h) and paragraph (c) of this Section 7 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(i) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(j) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(k) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of Escrow Agent's partnerswritten notice of termination signed by both the Company and the Placement Agent or at any time may resign by giving written notice to such effect to the Company and the Placement Agent not less than 60 days' prior to the date when such resignation shall take effect. Upon the effectiveness of any such termination or resignation, employees, agents and representatives for any action taken or omitted to be taken by the Escrow Agent shall promptly deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of them hereundercompetent jurisdiction if no such successor escrow agent is agreed upon, including whereupon the reasonable fees Escrow Agent shall be discharged of outside counsel and other reasonable costs from any and expenses of defending itself against any claim or liability under all further obligations arising in connection with this Agreement, Escrow Agreement except in to the case of extent resulting from its gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementmisconduct. The termination or resignation of the Escrow Agent shall owe take effect on the earlier of (i) the appointment of a duty only to successor (including a court of competent jurisdiction) or (ii) the Subscriber and Company under this Agreement and to no other person.
day that is: (cA) The Subscriber and Company jointly and severally agree to reimburse 30 days after the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue delivery to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents other parties' notice of termination or (B) 60 days after the date of delivery to a substitute the other parties hereto of the Escrow Agent's written notice of resignation. If at the time of any termination or resignation the Escrow Agent selected by the Subscriber and Company. If no has not received a designation of a successor Escrow Agent is named by the Subscriber and Companyescrow agent, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow AgentAgent and shall, and to deposit the Company Documents and Subscriber Documents with the clerk of any until such court.
(e) The time as a successor Escrow Agent does not have is appointed, maintain the Escrowed Property pursuant to the terms and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention conditions of any investment in accordance with this Escrow Agreement.
(fl) This In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the affected subscribers, if any, directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement.
(m) As consideration for the performance by the Escrow Agent of its duties herein described, the Company agrees to pay the Escrow Agent fees determined in accordance with the terms set forth on Exhibit E hereto (made a part of this Escrow Agreement sets forth exclusively as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses of third parties, incurred by the Escrow Agent in performance of its duties hereunder (including reasonable fees and expenses of its outside counsel).
(n) The other parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. Each party agrees to accept service of any summons, complaint or other initial pleading made in the manner provided for the giving of notices in Section 6 hereof, provided that nothing in this Section 7(n) shall affect the right of any party to serve such summons, complaint or other initial pleading in any other manner permitted by law.
(o) No printed or other matter in any language (including, without limitation, the Registration Statement, notices, reports and promotional material) which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto (which consent shall not be unreasonably withheld, conditioned or delayed). The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement and the Placement Agency Agreement.
(gp) The Anything in this Escrow Agreement to the contrary, notwithstanding, in no event shall the Escrow Agent shall be permitted liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to act as counsel for lost profits) even if the Subscriber in any dispute as to the disposition Escrow Agent has been advised of the Company Documents and Subscriber Documents, likelihood of such loss or damage or regardless of the form of action.
(q) In the event funds transfer instructions are given (other than in any other dispute between writing at the Subscriber and Company which is unrelated to the time of execution of this Escrow Agreement), whether in writing, by telecopy or not otherwise, the Escrow Agent is then holding authorized to seek confirmation of such instructions by telephone call-back to the Company Documents person or persons designated on Schedule II hereto, and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) may rely upon the confirmation of anyone purporting to be the person or persons so designated. The provisions of this Section 4.1 shall survive the resignation of persons and telephone numbers for call-backs may be changed only in a writing actually received and acknowledged by the Escrow Agent. The Escrow Agent and the beneficiary's bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by the Placement Agent or the termination Company to identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary bank. The Escrow Agent may apply any of the escrowed funds for any payment order it executes using any such identifying number, even where its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary's bank or an intermediary bank designated. The parties to this AgreementEscrow Agreement acknowledge that these security procedures are commercially reasonable.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties Agent shall make deliveries or disbursements hereunder only upon the joint written instructions of Borrower and responsibilities shall be subject to Lender, or their respective legal counsel. Upon the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed taking by the Escrow Agent pursuant to of any action permitted by this Agreement; (iii) may rely on and , the Escrow Agent shall be protected released of and from all liability hereunder except for any gross negligence or willful default. Except as otherwise provided in acting or refraining from acting upon any written noticethis Agreement, instruction, instrument, statement, request or document furnished to it hereunder all costs and believed expenses incurred by the Escrow Agent in good faith to be genuine and to have been signed or presented by performing its duties as the proper person or partyEscrow Agent, including, without being required limitation, attorneys’ fees (either paid to determine retained attorneys or amounts representing the authenticity fair value of legal services rendered to or correctness for itself) shall be borne fifty percent (50%) by Lender and fifty percent (50%) by Borrower. The Escrow Agent acts hereunder as a depository only and is not responsible or liable in any manner whatever for (i) the sufficiency, correctness, genuineness, collection or validity of any fact stated therein instrument deposited with it, (ii) the form of execution of such instruments, (iii) the identity, authority or rights of any person executing or depositing the propriety or validity or the service thereof; same, (iv) the terms and conditions of any instrument pursuant to which the parties may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice act, or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect loss of any action taken, suffered funds deposited with it (due to early presentation for payment or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreementotherwise), except in the case of for its gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereofdefault. The Escrow Agent shall not have any duties or responsibilities except those set forth in this Agreement, and shall not incur any liability in acting upon any signature, notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Agent to be liable for genuine, and the Escrow Agent may assume that any loss resulting from the making or retention person purporting to give it any notice on behalf of any investment party in accordance with the provisions hereof has been duly authorized to do so, except that this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of will not relieve the Escrow Agent with respect to of liability for its gross negligence or willful default. The terms and conditions of this subsection (k) shall create no right in any person, firm or corporation other than the parties hereto and all matters pertinent thereto their respective successors and assigns, and no implied duties third party shall have the right to enforce or obligations shall be read into this Agreementbenefit from the terms hereof.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities a. The Escrow Agent shall not have any liability to any of the parties to this Agreement or to any third party arising out of its services as Escrow Agent under this Agreement, except for damages directly resulting from the Escrow Agent. The 's gross negligence or willful misconduct.
b. Buyer and Sellers jointly and severally shall indemnify the Escrow Agent's duties Agent and responsibilities shall be subject to the following terms and conditions:
hold it harmless against any loss, liability, damage or expense (aincluding reasonable attorneys' fees) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt may incur as a result of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties acting as are specifically assumed by the Escrow Agent pursuant to escrow agent under this Agreement; (iii) may rely on and shall be protected in acting , except for any loss, liability, damage or refraining expense arising from acting upon its own gross negligence or willful misconduct. For this purpose, the term "attorneys' fees" includes fees payable to any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed counsel retained by the Escrow Agent in good faith connection with its services under this Agreement and, with respect to any matter arising under this Agreement as to which the Escrow Agent performs legal services, its standard hourly rates and charges then in effect.
c. The Escrow Agent shall be genuine and entitled to have been signed rely upon any judgment, notice, instrument or presented by the proper person or party, other writing delivered to it under this Agreement without being required to determine the authenticity of, or the correctness of any fact stated therein in, that document and irrespective of any facts the Escrow Agent may know or the propriety be deemed to know in any other capacity. The Escrow Agent may act in reliance upon any instrument or validity or the service thereof; (iv) signature believed by it to be genuine and may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give any notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty this Agreement has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counseldo so.
(b) d. The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent have no duties or responsibilities except those expressly set forth in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in obligations arising out of or be bound by the Company Documents and Subscriber Documentsprovisions of any other agreement, written or oral, including, but is serving only as escrow agentnot limited to, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Stock Purchase Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Escrow Agent shall not have any liability to any of the Parties to this Agreement or to any third party arising out of its services as Escrow Agent under this Agreement, except for damages directly resulting from the Escrow Agent's gross negligence or willful misconduct.
(b) The Company and Company acknowledge the Investors jointly and agree severally shall indemnify the Escrow Agent and hold it harmless against any loss, liability, damage or expense (including reasonable attorneys’ fees) that the Escrow Agent (i) shall not be responsible may incur as a result of acting as escrow agent under this Agreement, except for any loss, liability, damage or bound by, and shall not be required to inquire into whether either the Subscriber expense arising from its own gross negligence or Company is entitled to receipt of willful misconduct. As between the Company Documents and Subscriber Documents pursuant tothe Investors, any other agreement or otherwise; (ii) such obligations shall be obligated only for the performance of such duties as are specifically assumed borne equally by the Escrow Agent pursuant Company and the Investors. For this purpose, the term “attorneys’ fees” includes fees payable to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed counsel retained by the Escrow Agent in good faith connection with its services under this Agreement and, with respect to be genuine any matter arising under this Agreement as to which the Escrow Agent performs legal services, if and to have been signed the extent that the Escrow Agent itself is a law firm, its standard hourly rates and charges then in effect.
(c) The Escrow Agent shall be entitled to rely upon any judgment, notice, instrument or presented by the proper person or party, other writing delivered to it under this Agreement without being required to determine the authenticity of, or the correctness of any fact stated therein in, that document and irrespective of any facts the Escrow Agent may know or the propriety be deemed to know in any other capacity. The Escrow Agent may act in reliance upon any instrument or validity or the service thereof; (iv) signature believed by it to be genuine and may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give any notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and has been duly authorized to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunderdo so.
(d) The Escrow Agent may at any time resign as shall have no duties or responsibilities except those expressly set forth in this Agreement. The Escrow Agent hereunder shall not have any obligations arising out of or be bound by giving five the provisions of any other agreement, written or oral, including, but not limited to, the Stock Purchase Agreement.
(5e) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date All of the Escrow Agent's rights of indemnification provided for in this Agreement shall survive the resignation as specified in such notice, the Subscriber and Company will issue to of the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected Agent, its replacement by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, its delivery or deposit of the Escrow Funds in accordance with this Agreement, the termination of this Agreement, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtother event that occurs after this date.
(ef) The Escrow Agent does not shall have and will not have any interest in no responsibility with respect to the sufficiency of the arrangements contemplated by this Agreement to accomplish the intentions of the Parties.
(g) The Investors acknowledge that they are aware that the Escrow Agent has represented the Company Documents in connection with the Purchase Agreement and Subscriber Documentsthis Escrow Agreement and that the Escrow Agent may continue to represent the Company in that connection and in connection with the transactions contemplated by those agreements, including, but is serving only as escrow agentnot limited to, having only possession thereofin connection with any disputes that may arise under either of those agreements. The Escrow Agent shall not be liable precluded from or restricted from representing the Company or any of its affiliates or otherwise acting as attorneys for the Company or any loss resulting from of its affiliates in any matter, including, but not limited to, any court proceeding or other matter related to the making Purchase Agreement or retention of any investment in accordance with the transactions contemplated by the Purchase Agreement, or this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of or the Escrow Agent Funds, whether or not there is a dispute between the Investors and/or the Company with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreementsuch matter.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Sources: Closing Escrow Agreement (China Public Security Technology, Inc.)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that duties of the Escrow Agent (i) are limited to those specifically provided for herein and are purely ministerial in nature. The Escrow Agent shall not be responsible incur no liability hereunder or otherwise except for its own gross negligence or bound bywillful misconduct, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents Seller and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by Buyer hereby release the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable liability for any action taken by it hereunder or for any failure or refusal to act hereunder or for any other matter. Unless the Escrow Agent in good faith shall have been guilty of gross negligence or willful misconduct, Seller and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, Buyer hereby jointly and severally, severally agree to indemnify and hold harmless the Escrow Agent from and against any of Escrow Agent's partnersliability, employees, agents and representatives for any action taken shall promptly pay or omitted to be taken by reimburse the Escrow Agent or any of them hereunder, including the reasonable for its fees of outside counsel and other reasonable for all costs and expenses of defending itself against any claim or liability incurred by it in connection with its performance under this Escrow Agreement. Except as provided in the immediately preceding sentence, neither Seller nor Buyer shall have any obligation to pay any fee or other compensation to the Escrow Agent for acting hereunder.
(b) The Escrow Agent shall not be bound in any way by any agreement or contract between Seller and/or Buyer, whether or not it has knowledge thereof, and the Escrow Agent’s only duties and responsibilities shall be to hold and release the Escrow Fund in accordance with the terms of this Escrow Agreement. Without limiting the generality of the foregoing, the Escrow Agent shall have no responsibility to protect the Escrow Fund and shall not be responsible for any failure to demand, collect or enforce any obligation with respect to the Escrow Fund or for any diminution in value of the Escrow Fund for any cause. The Escrow Agent may, at the expense of Seller and Buyer, consult with counsel and accountants in connection with its duties under this Escrow Agreement, except in and the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementshall be fully protected in any act taken, suffered or permitted by it in good faith in accordance with the advice of such counsel and accountants. The Escrow Agent shall owe a duty only not be obligated to take any action hereunder which may, in its reasonable judgment, involve it in any liability unless the Escrow Agent shall have been furnished with reasonable indemnity satisfactory in amount, form and substance to the Subscriber and Company under this Agreement and to no other personEscrow Agent.
(c) The Subscriber Escrow Agent is acting as a stakeholder only with respect to the Escrow Fund. The Escrow Agent shall have no responsibility to determine the authenticity or validity of any notice, instruction, instrument, document or other item delivered to it, and Company jointly shall be fully protected in acting in accordance with any written notice, direction or instruction given to it under this Escrow Agreement and severally agree believed by it to reimburse be authentic. In the event of any dispute under this Agreement, the Escrow Agent shall have no obligation to disburse the Escrow Fund to any party, and shall continue to hold the Escrow Fund in accordance with the terms of this Agreement, until the Escrow Agent shall have received an authorization in writing, signed by all parties having an interest in the dispute, directing the disposition of the Escrow Fund. If such written authorization is not received by the Escrow Agent within thirty (30) days after such dispute arises, the Escrow Agent may, but is not required to, bring an appropriate action or proceeding for leave to deposit the Escrow Fund with a court of the State of New Jersey pending a resolution of such dispute, and the Escrow Agent shall be reimbursed for all costs and expenses of such action or proceeding, including without limitation reasonable outside counsel feesattorney fees and disbursements, by the party determined not to be entitled to the extent authorized hereunder and incurred Escrow Fund. Upon making the delivery of the Escrow Fund in the manner provided in this Escrow Agreement, the Escrow Agent shall have no further liability hereunder. In no event shall the Escrow Agent be under any duty to institute, defend or participate in any proceeding which may arise between Seller and/or Buyer in connection with the performance of its duties and responsibilities hereunderthis Agreement.
(d) The Escrow Agent may resign at any time resign as Escrow Agent hereunder by giving five ten (510) days days’ prior written notice of resignation to the Subscriber and other parties hereto, such resignation to be effective on the Company. Prior to the effective date of the resignation as specified in such notice, . In case the Subscriber and Company will issue to the office of Escrow Agent shall become vacant for any reason, Seller may appoint a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a bank or trust company as successor Escrow Agent, whereupon such successor Escrow Agent shall succeed to all rights and obligations of the retiring Escrow Agent as if originally named hereunder, and the retiring Escrow Agent shall duly transfer and deliver to deposit such successor Escrow Agent the Company Documents and Subscriber Documents with Escrow Fund held by the clerk of any such courtretiring Escrow Agent hereunder.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of Seller acknowledges that the Escrow Agent has represented Buyer in the past and currently represents Buyer in connection with respect the purchase of the Assets pursuant to the Purchase Agreement. Seller further acknowledges and agrees that, in the event of any and all matters pertinent thereto and no implied duties dispute concerning this Escrow Agreement or obligations shall be read into this Agreement.
(g) The the transactions contemplated hereby, the Escrow Agent shall be permitted free to act as counsel for the Subscriber represent Buyer in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreementsuch dispute, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as hold the Escrow Agent hereunder.
(h) The provisions of Fund pursuant to this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Sources: Asset Acquisition Agreement (Mesa Laboratories Inc /Co)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of To induce the Escrow Agent. The Escrow Agent's duties Agent to act hereunder, it is further agreed by the Seller and responsibilities shall be subject to the following terms and conditionsBuyer that:
(a) The Subscriber and Company acknowledge and agree that This Agreement expressly sets forth all the duties of the Escrow Agent (i) with respect to any and all matters pertinent hereto. No implied duties or obligations on the part of the Escrow Agent shall be read into this Agreement. The Escrow Agent shall not be responsible for or bound by, and by the provisions of any agreement among the other parties hereto except this Agreement.
(b) The Escrow Agent shall not be required liable for any action or failure to inquire into whether either act in its capacity as Escrow Agent hereunder unless such action or failure to act shall constitute gross negligence or willful misconduct on the Subscriber or Company is entitled to receipt part of the Company Documents and Subscriber Documents pursuant toEscrow Agent, any other agreement or otherwise; (ii) in which case there shall be obligated only for the performance of such duties no indemnification obligations as are specifically assumed by provided in Paragraph 3, and the Escrow Agent pursuant to this Agreement; shall indemnify and hold harmless the Seller, Buyer and their respective officers, directors, agents and employees from and against any loss, cost or expense (iiiincluding reasonable attorneys’ fees) that they may rely on and suffer or incur as a consequence of such gross negligence or willful misconduct.
(c) The Escrow Agent shall be protected in acting or refraining from acting entitled to rely upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume act in reliance upon any instrument or signature believed by it to be genuine and may assume, unless it has actual knowledge to the contrary, that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunderdo so.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation act pursuant to the Subscriber advice of counsel with respect to any matter relating to this Agreement and the Company. Prior to the effective date of the resignation shall not be liable for any action taken or omitted in accordance with such advice, except as specified provided in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtparagraph 6(b) above.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber DocumentsShares or Purchase Funds, but is serving only as escrow agent, holder only and having only possession thereof, and is not charged with any duty or responsibility to determine the validity or enforceability of any such document.
(f) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Share Certificate and the Purchase Funds to any successor Escrow Agent, jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement thereafter. The resignation of the Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 5 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent’s sole responsibility after that time shall be to safe keep the deposited Share Certificate and Purchase Funds and not make delivery or disposition thereof until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(g) In the event of any disagreement among the parties hereto resulting in adverse claims or demands being made in connection with the Share Certificate or Purchase Funds, or in the event that the Escrow Agent otherwise determines that the Share Certificate and/or Purchase funds should be retained, then the Escrow Agent may retain the Share Certificate and/or Purchase Funds until the Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of the Share Certificate and/or Purchase funds, or (ii) a written agreement executed by the other parties hereto directing delivery of the Share Certificate and/or Purchase Funds, in which case the Escrow Agent shall promptly deliver the Share Certificate and/or Purchase Funds in accordance with such order or agreement. Any court order referred to in (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 court order is final and non-appealable. The Escrow Agent shall not be liable for any loss resulting from make no independent determination regarding the making Share Certificates or retention Purchase Funds absent the filing and notice of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties a legal action by one or both of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderparties.
(h) The provisions of this Section 4.1 This Agreement shall survive be binding upon and inure solely to the resignation benefit of the parties hereto and their respective successors (including successors by way of merger) and assigns, heirs, administrators and representatives and shall not be enforceable by or inure to the benefit of any third party except as provided in paragraph 6(g) with respect to a resignation by the Escrow Agent. Each entity that is a party hereto represents and warrants that they have the full power and authority to bind the entity and that Escrow Agent or may rely upon such representation with out further inquiry. This Agreement may be modified only in writing, signed by al of the termination of this Agreementparties hereto, and no waiver hereunder shall be effective unless in writing signed by the party to be charged.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties Each Interested Party acknowledges and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or bound bydescribed herein (including without limitation the Securities Purchase Agreement), or for determining or compelling compliance therewith, and shall not otherwise be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant tobound thereby, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are expressly and specifically assumed by set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent pursuant to this Agreement; Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person person, and shall have no responsibility or party, without being required duty to make inquiry as to or to determine the authenticity or correctness of any fact stated therein or the propriety genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the service thereof; (iv) may assume that any authority of the person believed by signing or presenting the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; same, and (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agentit, including in-house counsel, and the opinion or advice of such counsel to in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) . The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives anyone for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, it hereunder except in the case of the Escrow Agent’s gross negligence or willful misconduct in breach of the terms of this Agreement. In no event shall the Escrow Agent be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent has been informed of the likelihood of such loss or damage and regardless of the form of action. The Escrow Agent shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by the Escrow Agent than any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent's part committed , except to the extent that such action or omission of any book-entry depository, securities intermediary or other subescrow agent was caused by the Escrow Agent’s own gross negligence or willful misconduct in its capacity as Escrow Agent under breach of this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel feesis hereby authorized, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention disposing of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into permitted by this Agreement.
, to deal with itself (gin its individual capacity) The Escrow Agent shall be permitted to act as counsel for the Subscriber in or with any dispute as to the disposition one or more of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreementits affiliates, whether it or not the Escrow Agent such affiliate is then holding the Company Documents and Subscriber Documents and continues to act acting as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation a subagent of the Escrow Agent or for any third person or dealing as principal for its own account. Notwithstanding any term appearing in this Agreement to the termination contrary, in no instance shall the Escrow Agent be required or obligated to distribute any Escrow Property (or take other action that may be called for hereunder to be taken by the Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Agreement in good form, or (ii) passage of the applicable time period (or both, as applicable under the terms of this Agreement), as the case may be. Unless and except to the extent otherwise expressly set forth herein, all deposits and payments hereunder, or pursuant to the terms hereof (including without limitation all payments to the Escrow Agent pursuant to Section 6, shall be in U.S. dollars.
Appears in 1 contract
Sources: Holdback Escrow Agreement (Energroup Holdings Corp)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Each party acknowledges and Company acknowledge and agree agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or bound bydescribed herein (including without limitation the Reorganization Agreement), or for determining or compelling compliance therewith, and shall not otherwise be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant tobound thereby, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are expressly and specifically assumed by set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent pursuant to this Agreement; Agent, (iii) shall not be obligated to take any legal or other action hereunder that might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or (or, if so requested, refraining from acting acting) upon and in accordance with any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person or partyperson, without being required to determine and shall have no responsibility for determining the authenticity or correctness of any fact stated therein or the propriety or validity or the service accuracy thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; , and (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agentit, including in-house counsel, and the opinion or advice of such counsel to in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives anyone for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, it hereunder except in the case of the Escrow Agent's gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under breach of the terms of this Agreement. The In no event shall the Escrow Agent shall owe a duty only be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Subscriber Escrow Agent has been informed of the likelihood of such loss or damage and Company under this Agreement and to no other personregardless of the form of action.
(c) The Subscriber and Company jointly and severally agree to reimburse Escrow Agent shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository or securities intermediary employed by the Escrow Agent for reasonable outside counsel feesthan any such book-entry depository or securities intermediary has to the Escrow Agent, except to the extent authorized hereunder and incurred that such action or omission of any book-entry depository or securities intermediary was caused by the Escrow Agent's own gross negligence or willful misconduct in connection with the performance breach of its duties and responsibilities hereunderthis Agreement.
(d) The Escrow Agent may resign and be discharged from its duties hereunder at any time resign as Escrow Agent hereunder by giving five (5) days at least 30 days' prior written notice of such resignation to the Subscriber Parent and the CompanyStockholder specifying a date upon which such resignation shall take effect; PROVIDED, HOWEVER, that the Escrow Agent shall continue to serve until its successor accepts the Escrow Fund. Prior Upon receipt of such notice, a successor escrow agent shall be appointed by Parent and the Stockholder, such successor escrow agent to become the effective date of Escrow Agent hereunder on the resignation as date specified in such notice. If a written instrument of acceptance by a successor escrow agent shall not have been received by the Escrow Agent within 40 days after the giving of such notice of resignation, the Subscriber resigning Escrow Agent may at the expense of Parent petition any court of competent jurisdiction for the appointment of a successor escrow agent. Parent and Company will issue the Stockholder acting jointly, may at any time substitute a new escrow agent by giving 10 days' prior written notice thereof to the Escrow Agent a Joint Instruction authorizing delivery then acting and by Parent paying all fees and expenses of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor such Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Sources: Escrow Agreement (Dreamlife Inc)
Concerning the Escrow Agent. 4.1To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agents that:
(a) The Escrow Agent shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Duties Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and Responsibilities of all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent's duties and responsibilities Agent shall not be subject to bound by the following terms and conditions:provisions of any agreement among the other parties hereto except this Escrow Agreement.
(ac) The Subscriber Escrow Agent shall not be liable 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 other parties hereto shall jointly and Company acknowledge severally indemnify and agree that hold harmless the Escrow Agent (iand any successor Escrow Agent) shall not be responsible for or bound byfrom and against any and all losses, liabilities, claims, actions, damages and shall not be required to inquire into whether either expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with this Escrow Agreement. Without limiting the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant toforegoing, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant 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 gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property, or any loss of interest incident to this Agreement; any such delays.
(iiid) may rely on and The Escrow Agent shall be protected in acting or refraining from acting entitled to rely upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed Company or presented by the proper person or party, Placement Agents without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume that act in reliance upon any person instrument or signature believed by the Escrow Agent it in good faith to be authorized genuine and may assume, if in good faith, 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 is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counseldo so.
(be) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and that the Escrow Agent shall not be liable for any action taken by Escrow Agent or omitted in good faith and believed in accordance with such advice.
(f) The Escrow Agent does not have, for tax reporting purposes, any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only. The parties hereto agree that, for tax reporting purposes, all interest or other income earned from the investment of the Escrowed Property or any portion thereof in any tax year (i) to the extent such interest or other income is distributed by the Escrow Agent to any person or entity pursuant to the terms of this Escrow Agreement during such tax year, shall be authorized reported as allocated to such person or within entity, and (ii) otherwise shall be reported as allocated to the rights or powers conferred upon subscribers, in proportion to their respective Subscription Payment as set forth on Exhibit A hereto.
(g) Any payments of income from the Escrow Agent by this AgreementAccount shall be subject to withholding regulations then in force with respect to United States taxes. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D., number certification, or non-resident alien certifications.
(h) This paragraph (h) and paragraph (c) of this Section 6 shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(i) The Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(j) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(k) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to it of Escrow Agent's partnerswritten notice of termination signed by both the Company and the Placement Agents or at any time mayresign by giving written notice to such effect to the Company and the Placement Agents not less than 60 days’ prior to the date when such resignation shall take effect. Upon the effectiveness of any such termination or resignation, employees, agents and representatives for any action taken or omitted to be taken by the Escrow Agent shall promptly deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of them hereundercompetent jurisdiction if no such successor escrow agent is agreed upon, including whereupon the reasonable fees Escrow Agent shall be discharged of outside counsel and other reasonable costs from any and expenses of defending itself against any claim or liability under all further obligations arising in connection with this Agreement, Escrow Agreement except in to the case of extent resulting from its gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementmisconduct. The termination or resignation of the Escrow Agent shall owe take effect on the earlier of (i) the appointment of a duty only to successor (including a court of competent jurisdiction) or (ii) the Subscriber and Company under this Agreement and to no other person.
day that is: (cA) The Subscriber and Company jointly and severally agree to reimburse 30 days after the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue delivery to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents other parties’ notice of termination or (B) 60 days after the date of delivery to a substitute the other parties hereto of the Escrow Agent’s written notice of resignation. If at the time of any termination or resignation the Escrow Agent selected by the Subscriber and Company. If no has not received a designation of a successor Escrow Agent is named by the Subscriber and Companyescrow agent, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow AgentAgent and shall, and to deposit the Company Documents and Subscriber Documents with the clerk of any until such court.
(e) The time as a successor Escrow Agent does not have is appointed, maintain the Escrowed Property pursuant to the terms and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention conditions of any investment in accordance with this Escrow Agreement.
(fl) This In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Shares resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to refrain from taking any action and retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto and consented to by the affected subscribers, if any, directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement.
(m) As consideration for the performance by the Escrow Agent of its duties herein described, the Company agrees to pay the Escrow Agent fees determined in accordance with the terms set forth on Exhibit E hereto (made a part of this Escrow Agreement sets forth exclusively as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable expenses of third parties, incurred by the Escrow Agent in performance of its duties hereunder (including reasonable fees and expenses of its outside counsel not to exceed $10,000).
(n) The other parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. Each party agrees to accept service of any summons, complaint or other initial pleading made in the manner provided for the giving of notices in Section 5 hereof, provided that nothing in this Section 6(n) shall affect the right of any party to serve such summons, complaint or other initial pleading in any other manner permitted by law.
(o) No printed or other matter in any language (including, without limitation, the Registration Statement, notices, reports and promotional material) which mentions he scrow Agent’s name or the rights, powers, or duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into issued by the other parties hereto or on such parties’ behalf unless the Escrow Agent shall first have given its specific written consent thereto (which consent shall not be unreasonably withheld, conditioned or delayed). The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement (including all exhibits thereto) and the Placement Agency Agreement and in the filings made by the Company under the Securities Exchange Act of 1934, as amended including the filing of this AgreementAgreement as an exhibit thereto.
(gp) The Anything in is Escrow Agreement to the contrary, notwithstanding, in no event shall the Escrow Agent shall be permitted liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to act as counsel for lost profits) even if the Subscriber in any dispute as to the disposition Escrow Agent has been advised of the Company Documents and Subscriber Documents, likelihood of such loss or damage or regardless of the form of action.
(q) In the event funds transfer instructions are given (other than in any other dispute between writing at the Subscriber and Company which is unrelated to the time of execution of this Escrow Agreement), whether in writing, by telecopy or not otherwise, the Escrow Agent is then holding authorized to seek confirmation of such instructions by telephone call-back to the Company Documents person or persons designated on Schedule II hereto, and Subscriber Documents and continues to act as the Escrow Agent hereunder.
may rely upon the confirmation of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in a writing actually received and acknowledged by the Escrow Agent. The Escrow Agent and the beneficiary’s bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by the Placement Agents or the Company to identify (hi) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank. The provisions of this Section 4.1 shall survive the resignation Escrow Agent may apply any of the Escrow Agent escrowed funds for any payment order it executes using any such identifying number, even where its use may result in a person other than the beneficiary being paid, or the termination transfer of funds to a bank other than the beneficiary’s bank or an intermediary bank designated. The parties to this AgreementEscrow Agreement acknowledge that these security procedures are commercially reasonable.
Appears in 1 contract
Concerning the Escrow Agent. 4.1(a) The fee of the Escrow Agent hereunder is $750, which fee shall be nonrefundable and paid in advance by the Issuers. Duties The Issuers also agree to pay on demand the reasonable costs and Responsibilities expenses of the Escrow Agent. , including the reasonable fees and expenses of outside counsel selected by the Escrow Agent, other than the costs and expenses reimbursed pursuant to Section 4, incurred in connection with its duties hereunder.
(b) The Escrow Agent's duties and responsibilities Agent shall be subject to exercise the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that same degree of care toward the Escrow Agent (i) shall not be responsible for or bound by, Escrowed Property as it exercises toward its own similar property and shall not be required held to inquire into whether either any higher standard of care under this Agreement, nor be deemed to owe any fiduciary duty to the Subscriber Issuers or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; party.
(iic) shall be obligated only for the performance of such duties as are specifically assumed by the The Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting act upon any written notice, instruction, instrument, statement, request instrument or document furnished to it hereunder and other writing believed by the Escrow Agent it in good faith to be genuine and to have been signed or presented by the proper person or partyperson, without being required and shall not be liable to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document party hereto in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give performance of its duties hereunder, except for its own negligence, willful misconduct or bad faith. The duties of the property held by Escrow Agent hereunder any greater degree of care than shall be determined only with reference to this Agreement and applicable laws and the Escrow Agent gives its own similar property; and (vi) is not charged with any knowledge of, or any duties or responsibilities in connection with, any other document or agreement. The Escrow Agent may consult with counsel satisfactory to Escrow Agent, the opinion of such counsel to its choice and shall be full and complete authorization and protection protected in respect of any action taken, suffered taken or omitted by Escrow Agent hereunder in good faith and in accordance with reliance on the advice or opinion of such counsel.
(bd) The Subscriber Escrow Agent may execute any of its powers or responsibilities hereunder and Company acknowledge that exercise any rights hereunder either directly or by or through its agents or attorneys and shall not be liable for the misconduct or negligence of any such agent or attorney appointed with due care by it hereunder.
(e) Nothing in this Agreement shall be deemed to impose upon the Escrow Agent any duty to qualify to do business or to act as agent or otherwise in any jurisdiction other than the State of New York.
(f) 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 Agreement, any agreement amendatory or supplemental hereto or of any certificates delivered to it hereunder.
(g) The Escrow Agent makes no representation as to the validity, value, genuineness or 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 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 shall have the right at any time to resign hereunder by giving written notice of its resignation to the Issuers at the address set forth herein or at such other address as the Issuers shall provide, at least 30 days prior to the date specified for such resignation to take effect. Upon the effective date of such resignation, all Escrowed Property then held by the Escrow Agent hereunder shall be delivered by it to a successor escrow agent. If no successor escrow agent is acting solely appointed within 30 days of such effective date, the Escrow Agent may apply at the expense of the Issuers to a court of competent jurisdiction for such appointment.
(j) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by Escrow Agent hereunder, Escrow Agent may, in its sole discretion, refrain from taking any action other than retain possession of the Escrowed Property, unless Escrow Agent receives written instructions, signed by the Issuers, which eliminates such ambiguity or uncertainty. If the Escrow Agent should at any time be confronted with inconsistent claims or demands to the Escrowed Property, the Escrow Agent shall have the right, but not the duty, 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 the Escrowed Property. In the event the Escrow Agent no longer holds any Escrowed Property, it shall be released from any obligation or liability as a stakeholder consequence of any such claims or demands.
(k) The Escrow Agent shall not be required to use its own funds in the performance of any of its obligations or duties, or in the exercise of any rights or powers, and shall not be required to take any action which, in the Escrow Agent's sole judgment, could involve it in expense or liability unless furnished with security and indemnity which the Escrow Agent deems, in its sole discretion, to be satisfactory.
(l) If at their request any time 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 Escrowed 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 Escrowed Property), upon prior notice to the Issuers (unless such notice is prohibited by applicable law) Escrow Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and that if 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.
(m) Subject to Section 7(c) above, 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 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 telex or other wire or communication facility).
(n) In the event of any dispute between or conflicting claims by or among the Issuers and/or any other person or entity with respect to any Escrowed Property, Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any and all such claims, demands or instructions with respect to such, and Escrow Agent shall not be or become liable in any way to the Issuers for failure or refusal to comply with such conflicting claims, demands or instructions. Escrow Agent shall be entitled to refuse to act until, in its sole discretion, 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 and evidenced in a writing satisfactory to Escrow Agent.
(o) Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights omitted or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken loss or omitted to be taken by Escrow Agent injury resulting from its actions or any its performance or lack of them hereunder, including the reasonable fees performance of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except its duties hereunder in the case absence of gross negligence or of willful misconduct on Escrow Agent's part committed in its capacity as part. In no event shall Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to be liable (i) for acting in accordance with or relying upon any instruction, notice, demand, certificate or document from the Subscriber and Company under this Agreement and to no other person.
Issuers or the Initial Purchasers or any entity acting on behalf of any Issuer, (cii) The Subscriber and Company jointly and severally agree to reimburse for any consequential, punitive or special damages, (iii) for the Escrow Agent for reasonable outside counsel feesacts or omissions of its nominees, correspondents, designees, subagents or subcustodians, in each case, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent person was selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties due care, or obligations shall be read into this Agreement.
(giv) The Escrow Agent shall be permitted to act as counsel for the Subscriber an amount in any dispute as to the disposition excess of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation value of the Escrow Agent or Escrowed Property, valued as of the termination date of this Agreementdeposit.
Appears in 1 contract
Concerning the Escrow Agent. 4.15.1. Duties The Escrow Agent shall be paid a lump sum fee ("Annual Fee") of $2,500 per year during each year of this Escrow Agreement, plus a transaction fee of $10 per transaction, for its services hereunder and Responsibilities shall be reimbursed for any and all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in the performance of its duties hereunder, including the reasonable fees and disbursements of its counsel. All fees and expenses, including without limitation, the Annual Fee, of the Escrow Agreement shall be paid by Buyer upon execution of the Escrow Agreement. The escrow hereunder will not open until the Annual Fee is paid.
5.2. The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving 60 days' notice of such resignation ("Resignation Notice") to Buyer and Stockholder Representative specifying a date when such resignation shall take effect. Upon resignation, the Escrow Agent shall deliver the Deposit to the successor agent; provided, that the Escrow Agent shall have the right to withhold, from the Escrow Account, an amount equal to such fees and expenses as are then due and owing the Escrow Agent pursuant to Section 5.1 hereof.
5.3. Following receipt of the Escrow Agent's Resignation Notice, a bank, trust company or similar institution shall be appointed by Stockholder Representative as a successor escrow agent, such successor escrow agent to become an Escrow Agent hereunder upon the resignation date specified in such Resignation Notice. Until a new successor escrow agent is appointed, the Escrow Agent's only duty shall be to hold the Deposit until its successor accepts the escrow and receives the Deposit. Buyer and Stockholder Representative may agree at any time to substitute a new escrow agent upon giving 30 days prior notice to the Escrow Agent then acting.
5.4. The Escrow Agent's duties and responsibilities shall be subject Agent undertakes to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated perform only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) set forth herein and may conclusively rely on and shall be protected in acting or refraining from acting upon in accordance with any written notice, instruction, instrument, statement, request instrument or document furnished to it hereunder and signature believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person party or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.parties duly
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties To induce ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Professional Corporation to serve as the Escrow Agent and Responsibilities to act in such capacity hereunder, the Company and the Escrow Agent have entered into a separate agreement (the "Escrow Agreement"), relating to the proceeds of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to Offering, a copy of which is annexed hereto as Exhibit A. In connection therewith, it is further agreed by the following terms and conditionsparties hereto that:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible liable, except for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory 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 opinion of such counsel undersigned and the Company hereby agree to be full jointly and complete authorization severally indemnify and protection in respect of any action taken, suffered or omitted by hold harmless the Escrow Agent hereunder from and against any and all losses, liabilities, claims, actions, damages and expenses, including, without limitation, reasonable attorneys' fees and disbursements, arising out of or in good faith and in accordance connection with the opinion of such counselthis Escrow Agreement.
(b) The Subscriber understands and Company acknowledge that agrees that, notwithstanding its duties as Escrow Agent under the Escrow Agreement, the Escrow Agent is acting solely as a stakeholder at their request and that legal counsel to the Company, and, accordingly, neither any services provided by the Escrow Agent as Escrow Agent nor any provisions of the Escrow Agreement, either express or implied, shall not be liable for any action taken by restrict or inhibit the Escrow Agent in good faith and believed by Escrow Agent to be authorized any way from representing the Company or within the rights its affiliates in any action, dispute, controversy, arbitration, suit or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability negotiation arising under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at Agreement or under any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making other agreement or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreementmanner or context whatsoever, whether or not the Escrow Agent is then holding directly or indirectly involving the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderor its affiliates.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent6.1. The Escrow Agent's duties Agent may resign at any time by giving notice to Parent and responsibilities Shareholders specifying a date when the resignation shall take effect. Upon such notice, a successor Escrow Agent shall be subject appointed with the unanimous consent of Parent and the Shareholder Agent. If Parent and the Shareholder Agent are unable to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that upon a successor Escrow Agent within 30 days after such notice, the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of appoint its successor. The Escrow Agent shall continue to serve until its successor accepts the Company Documents appointment and Subscriber Documents pursuant toreceives the Escrow Fund. Parent and the Shareholder Agent shall have the right at any time, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed upon their mutual consent, to substitute a new Escrow Agent by giving notice to the Escrow Agent pursuant to then acting.
6.2. The Escrow Agent shall perform those duties specifically set forth in this Agreement; (iii) Agreement and may rely on conclusively rely, and shall be protected in acting or refraining from acting upon acting, on any written notice, instruction, instrument, statement, request instrument or document furnished to it hereunder and signature believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person party or party, without being required parties authorized to determine do so. The Escrow Agent shall have no responsibility for the authenticity or correctness contents of any fact stated therein or the propriety or validity or the service thereof; (iv) writing contemplated in this Agreement and may assume that rely on its contents without any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counselliability.
(b) 6.3. The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent it in good faith and believed by Escrow Agent it to be authorized by this Agreement or within the rights or powers conferred upon Escrow Agent by it under this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives or for any action taken or omitted to by it in good faith, and in accordance with advice of counsel (which counsel may be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agentown choosing), and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making mistake or retention fact or error of judgment or for any acts or omissions of any investment in accordance with this Escrow Agreementkind unless caused by willful misconduct or negligence.
(f) This Agreement sets forth exclusively the duties of 6.4. Each party shall indemnify the Escrow Agent with respect to any and hold it harmless from and against all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not liabilities incurred by the Escrow Agent is then holding under this Agreement as a consequence of that party's action, and the Company Documents and Subscriber Documents and continues to act as parties shall jointly indemnify the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of and hold it harmless from and against all liabilities incurred by the Escrow Agent under this Agreement that are not a consequence of any party's action, except in either case for liabilities incurred by the Escrow Agent resulting from its own willful misconduct or the termination of this Agreementnegligence.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property Escrow Shares held by Escrow Agent it hereunder any greater degree of care than Escrow Agent it gives its own similar property; property and (vi) may consult counsel satisfactory shall not be required to invest the Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counselShares.
(b) The Subscriber and Company acknowledge that the This Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement expressly sets forth exclusively all the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other agreement among the parties hereto except this Escrow Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence 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 other parties hereto shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney’s fees and disbursements, arising out of and in connection with this Escrow Agreement.
(d) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the proprieties, validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give notice or advice, accept receipt of or execute any document, or make any statement in connection with the provisions hereof, has been duly authorized to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and, except for its own gross negligence or willful misconduct, the Escrow Agent shall not be liable for any action taken or omitted in accordance with such advice.
(f) The Escrow Agent is serving as escrow holder only and has no interest in the Escrow Shares deposited hereunder. This Section 3(f) and Section 3(c) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute makes no representation as to the disposition validity, value, genuineness or the collectibility of the Company Documents and Subscriber Documents, in any security or other dispute between the Subscriber and Company which is unrelated documents or instrument held by or delivered to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderit.
(h) The provisions Escrow Agent shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Shares to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Section 4.1 shall survive the Escrow Agreement. The resignation of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent’s sole responsibility after that time shall be to safekeep the Escrow Shares until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the contents of any writing of the court or any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Shares, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Shares until the Escrow Agent shall have received (i) a final nonappealable order of a court of competent jurisdiction directing delivery of the Escrow Shares, or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Shares, in which event the Escrow Agent shall disburse the Escrow Shares in accordance with such order or agreement. Any court order referred to in (i) above shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and nonappealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(l) Notwithstanding anything to the contrary contained herein, in the event of any dispute between the parties hereto as to the facts of default, the validity or meaning of these instructions or any other fact or matter relating to the transaction between the parties, the Escrow Agent is instructed as follows:
(i) that it shall be under no obligation to act, except under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process or court order or indemnification; and
(ii) that it may in its sole and absolute discretion, deposit the property herein or so much thereof as remains in its hands with the then Clerk, or acting Clerk, of the Circuit Court of the State of California located in Los Angeles, California, interplead the parties hereto, and upon so depositing such property and filing its complaint in interpleader it shall be relieved of all liability under the terms hereof as to the property so deposited, and furthermore, the parties hereto for themselves, their heirs, legal representatives, successors and assigns do hereby submit themselves to the jurisdiction of said court. The institution of any such interpleader action shall not impair the rights of the Escrow Agent under Section 3(c) above.
(m) Pubco, on the one hand, and the Stockholders, on the other hand, each agree to pay one-half of the Escrow Agent’s fees for the services hereunder, which shall be an aggregate amount of [$ ]. All reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel), shall be allocated equally between Pubco, on the one hand, and the Stockholders, on the other hand.
(n) No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional materials) which mentions the Escrow Agent’s name or the termination rights, powers or duties of this Agreementthe 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.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Responsibilities the Placement Agent as follows:
(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 funds held hereunder except as directed in this Agreement, it being understood that 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, and no implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent's duties and responsibilities Agent shall not be subject to bound by the following terms and conditions:provisions of any agreement among the other parties hereto except this Agreement.
(ac) The Subscriber and Company acknowledge and agree Escrow Agent 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 (i) shall not be responsible for or bound by, and shall not be required Agent's willful misconduct was the primary cause of any loss to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant parties to this Agreement; . The Escrow Agent may consult with counsel of its own choice (iiiincluding any member of its firm) may rely on and shall have full and complete authorization and protection for any action taken or omitted by it hereunder in good faith and in accordance with the opinion of such counsel. This paragraph (c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent shall be protected in acting or refraining from acting entitled to rely upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume that act in reliance upon any person instrument or signature believed by the Escrow Agent it in good faith to be authorized genuine and may assume, if in good faith, 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 is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counseldo so.
(be) The Subscriber and Company acknowledge that shall indemnify the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Companyfor, jointly and severally, agree to indemnify and hold it harmless the Escrow Agent against, any loss, liability or expense arising out of or in connection with this Agreement and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them carrying out its duties hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in counsel either paid to retained attorneys (who may be selected by the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity ) or amounts representing the fair value of legal services rendered to itself, incurred as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred result of or in connection with the performance of its duties this Agreement, except in those cases where the Escrow Agent has been guilty of gross negligence 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 but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and responsibilities hereunderregardless of the form of action. This paragraph (e) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(ef) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, Escrowed Property deposited hereunder but is serving only as escrow agent, having only possession thereofholder only. The Escrow Agent shall not be liable for any loss resulting Any payments of income from the making or retention of any investment Escrow Account shall be subject to withholding regulations then in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent force with respect to any and all matters pertinent thereto and no implied duties United States taxes. All interest or obligations other income earned under this Agreement shall be read into this Agreementallocated and paid as provided herein and reported by the recipient to the Internal Revenue Service as having been so allocated and paid.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute makes no representation as to the disposition validity, value, genuineness or collectibility of the Company Documents and Subscriber Documents, in any security or other dispute between the Subscriber and Company which is unrelated documents or instruments held by or delivered to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderit.
(h) The provisions 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) at any time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by the Placement Agent and the Company or at any time may resign by giving written notice to such effect to the Placement Agent. Upon any such termination or resignation, the Escrow Agent shall deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Section 4.1 shall survive the Agreement. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is 30 days after the date of delivery: (A) to the Escrow Agent of the other parties' notice of termination or (B) to the other parties hereto of the Escrow Agent's written notice of resignation. If at that time the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after that time shall be to keep the Escrowed Property safe until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto or any enforceable order of a court of competent jurisdiction.
(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) The Escrow Agent shall not incur any liability for following the instructions herein contained or expressly provided for, or written instructions given by the parties hereto.
(l) 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 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, or it shall deliver all property held in escrow into the control of a court of competent jurisdiction, in which event the Escrow Agent shall have no further obligations or responsibilities with respect thereto. Additionally, in the event of any disagreement among or between the parties hereto resulting in adverse claims or demands being made in connection with the Escrowed Property, the Escrow Agent shall be entitled to retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement. Any court order referred to in (i) above shall have been accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinions without further question.
(m) The Company agrees to pay or reimburse the Escrow Agent upon request for all expenses, disbursements and advances, including reasonable attorneys' fees, incurred or made by it in connection with the preparation, execution, performance, delivery, modification and termination of this Agreement.
(n) The other parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. The other parties hereby consent to and grant any such court jurisdiction over the persons of such parties and over the subject matter of any such dispute and agree that delivery or mailing of process or other papers in connection with any such action or proceeding in the manner provided hereinabove, or in such other manner as may be permitted by law, shall be valid and sufficient service hereof.
(o) The duties and responsibilities of the Escrow Agent hereunder shall be determined solely by the express provisions of this Agreement, and no other or further duties or responsibilities shall be implied. The Escrow Agent shall not have any liability under, nor any duty to inquire into, the terms and provisions of any agreement or instructions, other than as outlined in this Agreement.
(p) The duties of the Escrow Agent hereunder are solely ministerial in nature, and the Escrow Agent shall not have any liability under, or duty to inquire into, the terms and provisions of any other agreement or document. The participation of Piper Marbury Rudnick & Wolfe LLP as Escrow Agent is being undertaken ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇o t▇▇ ▇▇mpany and the Placement Agent. The Company and the Placement Agent acknowledge that the Escrow Agent, from time to time, has served as counsel to the Placement Agent including, without limitation, in connection with the negotiation, execution and delivery of the Placement Agency Agreement and any other agreements or documents contemplated by the Transaction. The Company and the Placement Agent expressly waive any conflict of interest arising on account of such representation by the Escrow Agent and its service as the Escrow Agent hereunder. The participation of Piper Marbury Rudnick & Wolfe LLP as Escrow Agent shall in no way hind▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇nt ▇▇ ▇▇ture ability of Piper Marbury Rudnick & Wolfe LLP to act as counsel to the Placement A▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ any ▇▇▇▇er including, but not limited to, disputes with regard to this Agreement; provided, however, that such representation shall not affect the Escrow Agent's obligations hereunder and shall be at the sole cost and expense of the Placement Agent.
(q) If any property held by the Escrow Agent hereunder shall be attached, garnished or levied upon under an order of court, or the delivery thereof shall be stayed or enjoined by any order of court, or any other writ, order, judgment or decree shall be entered or issued by any court affecting such property, or any part thereof, or any act of the Escrow Agent, then the Escrow Agent is hereby expressly authorized to use its sole discretion to obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, and in the case the Escrow Agent obeys and complies with any such writ, order, judgment or decree, it shall not be liable to any person, firm or corporation by reason of such compliance notwithstanding the fact that such writ, order, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
Appears in 1 contract
Sources: Escrow Agreement (Somanetics Corp)
Concerning the Escrow Agent. 4.1. Duties (A) The Escrow Agent may resign and Responsibilities be discharged from its duties hereunder at any time by giving notice of such resignation to Warrantholders and Selling Shareholders, specifying a date not less than five business days following the date of the notice when such resignation shall take effect. Upon such notice, a successor escrow agent shall be jointly selected by a majority of the Warrantholders and a majority of the Selling Shareholders to become the Escrow AgentAgent hereunder upon the resignation date specified in such notice. If a majority of the Warrantholders and a majority of the Selling Shareholders are unable to agree upon a successor escrow agent within such five business days after the date of such notice, the Escrow Agent shall be entitled to appoint its successor. The Escrow Agent's duties and responsibilities Agent shall be subject continue to serve until its successor has accepted the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that escrow by executing a counterpart copy of this Agreement, whereupon the Escrow Agent shall have no further rights or obligations hereunder.
(iB) shall not be responsible for or bound by, and shall not be required The Escrow Agent undertakes to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated perform only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) set forth herein and may conclusively rely on and shall be protected in acting or refraining from acting upon on any written notice, instruction, instrument, statement, request instrument or document furnished to it hereunder and signature believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person or party, party on parties duly authorized so to do. The Escrow Agent shall have no responsibility for the contents of any writing contemplated herein and may rely without being required any liability upon the contents thereof. The Escrow Agent shall have no obligation to determine the authenticity or correctness of if any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that notice given to any person believed by party other than the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof has been timely given. It is so authorized; (v) shall not be under any duty to give the property held acknowledged by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; Warrantholders and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge Selling Shareholders that the Escrow Agent is acting solely as a stakeholder at their request bound only by the terms of this Agreement and that the Escrow Agent may, but shall not be required to, use its discretion with respect to any matter that is the subject of this Agreement or with respect to instructions received under this Agreement.
(C) The Escrow Agent shall not be liable for any action taken or omitted to be taken by Escrow Agent it in good faith and believed by Escrow Agent it to be authorized hereby or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Companyit hereunder, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives nor for any action taken or omitted to be taken by Escrow Agent or any it in good faith and in accordance with the advice of them hereunder, including counsel (which counsel may be of the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agentown choosing), and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making mistakes of fact or retention errors of judgment or for any acts or omissions of any investment in accordance with this Escrow Agreementkind unless caused by its own willful misconduct or gross negligence.
(fD) This Agreement sets forth exclusively the duties of ICI shall indemnify and hold harmless the Escrow Agent with respect to and its partners, employees and agents from and against any and all matters pertinent thereto costs, damages, claims, liabilities, judgments and no implied duties expenses (including reasonable attorneys' fees) incurred by it in connection with or arising out of the performance of its obligations shall be read into under this Agreement, including without limitation all such costs and expenses (including reasonable attorneys' fees) incurred by it as contemplated by Section 6 hereof.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1To induce the Escrow Agent to act hereunder, it is further agreed by the Company and Placement Agents that:
(a) The Escrow Agent shall not be required to invest any funds held hereunder except as directed in this Escrow Agreement. Duties Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and Responsibilities of all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent's duties Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Escrow Agreement. The Company and responsibilities the Placement Agents shall be subject to the following terms jointly and conditions:
(a) The Subscriber severally indemnify, defend and Company acknowledge and agree that save harmless the Escrow Agent and its directors, officers, agents and employees (the “Indemnitees”) from all loss, liability or expense (including the reasonable and documented fees and expenses of in-house or outside counsel) arising out of or in connection with (i) shall not be responsible for the Escrow Agent’s execution and performance of this Escrow Agreement, except in the case of any Indemnitee to the extent that such loss, liability or bound byexpense is due to the gross negligence or willful misconduct of such Indemnitee, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) its following any instructions or other directions from the Company or the Placement Agents, except to the extent that its following any such instruction or direction is expressly forbidden by the terms hereof. Notwithstanding anything to the contrary in this Section 6, any amounts owed by the Company and/or the Placement Agents to any Indemnitee pursuant to this Section 6 shall be obligated only for not exceed the performance amount of such duties as are specifically assumed the Escrow Agent fees received by the Escrow Agent pursuant to an in accordance with the terms of this Agreement plus the reasonable and documented fees and expenses of in-house or outside counsel to such Indemnitee. 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; .
(iiic) may rely on and The Escrow Agent shall be protected in acting or refraining from acting entitled to rely upon any written order, judgment, certification, demand, notice, instruction, instrument, statement, request instrument or document furnished other writing delivered to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed Company or presented by the proper person or party, Placement Agents without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or of the service thereof; (iv) . The Escrow Agent may assume that act in reliance upon any person instrument or signature believed by the Escrow Agent it in good faith to be authorized genuine and may assume, if in good faith, 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 is so authorized; (v) shall not be under any duty has been duly authorized to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counseldo so.
(bd) No party to this Escrow Agreement is liable to any other party for losses due to, or if it is unable to perform its obligations under the terms of this Escrow Agreement because of, acts of God, fire, floods, strikes, equipment or transmission failure, or other causes reasonably beyond its control.
(e) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request may act pursuant to the advice of counsel with respect to any matter relating to this Escrow Agreement and that the Escrow Agent shall not be liable for any action taken by Escrow Agent or omitted in good faith and believed by Escrow Agent to be authorized or within in accordance with such advice.
(f) The Company and the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless Placement Agents have provided the Escrow Agent with their respective fully executed Internal Revenue Service (“IRS”) Form W-8 or W-9 and/or other required documentation requested by the Escrow Agent in writing. The Company and the Placement Agents each represent that its correct TIN assigned by the IRS, or any other taxing authority, is set forth in the delivered forms Any tax returns to be filed will be prepared and filed by the Company and/or the Placement Agents with the IRS and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken other taxing authority as required by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementlaw. The Escrow Agent shall owe a duty only have no responsibility for the preparation of or reporting of any information to the Subscriber and Company under this Agreement and IRS or other taxing authority unless directed to no other persondo so by the appropriate authorized party.
(cg) This paragraph (g) and paragraph (b) of this Section 6 shall survive notwithstanding any termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(h) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, makes no representation as to the extent authorized hereunder and incurred in connection validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
(i) The Escrow Agent shall not be called upon to advise any party as to the wisdom of selling or retaining or taking or refraining from any action with the performance of its duties and responsibilities respect to any securities or other property deposited hereunder.
(dj) The Escrow Agent may (and any successor escrow agent) at any time resign as Escrow Agent may be discharged from its duties and obligations hereunder by giving five (5) days prior the delivery to it of written notice of resignation termination signed by both the Company and the Lead Placement Agent or at any time may resign by giving written notice to such effect to the Subscriber Company and the Company. Prior Lead Placement Agent not less than 60 days’ prior to the effective date when such resignation shall take effect. Upon the effectiveness of any such termination or resignation, the Escrow Agent shall promptly deliver the Escrowed Property to any successor escrow agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction if no such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Escrow Agreement except to the extent resulting from its gross negligence or willful misconduct. The termination or resignation of the Escrow Agent shall take effect on the earlier of (i) the appointment of a successor (including a court of competent jurisdiction) or (ii) the day that is: (A) 30 days after the date of the resignation as specified in such notice, the Subscriber and Company will issue delivery to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents other parties’ notice of termination or (B) 60 days after the date of delivery to a substitute the other parties hereto of the Escrow Agent’s written notice of resignation. If at the time of any termination or resignation the Escrow Agent selected by the Subscriber and Company. If no has not received a designation of a successor Escrow Agent is named by the Subscriber and Companyescrow agent, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow AgentAgent and shall, and to deposit the Company Documents and Subscriber Documents with the clerk of any until such court.
(e) The time as a successor Escrow Agent does not have is appointed, maintain the Escrowed Property pursuant to the terms and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention conditions of any investment in accordance with this Escrow Agreement.
(fk) This In the event of any disagreement among or between the other parties hereto and/or the subscribers of the Units resulting in adverse claims or demands being made in connection with the Escrowed Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to refrain from taking any action and retain the Escrowed Property until the Escrow Agent shall have received (i) a final and non-appealable order of a court of competent jurisdiction directing delivery of the Escrowed Property or (ii) a written agreement executed by the Company and the Placement Agents directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such order or agreement.
(l) As consideration for the performance by the Escrow Agent of its duties herein described, the Company agrees to pay the Escrow Agent fees determined in accordance with the terms set forth on Exhibit F hereto (made a part of this Escrow Agreement sets forth exclusively as if herein set forth). In addition, the Company agrees to reimburse the Escrow Agent for all reasonable and documented expenses of third parties, incurred by the Escrow Agent in performance of its duties hereunder (including reasonable and documented fees and expenses of its outside counsel).
(m) The other parties hereto irrevocably (i) submit to the jurisdiction of any New York State or federal court sitting in New York City in any action or proceeding arising out of or relating to this Escrow Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such New York State or federal court and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. Each party agrees to accept service of any summons, complaint or other initial pleading made in the manner provided for the giving of notices in Section 5 hereof, provided that nothing in this Section 6(m) shall affect the right of any party to serve such summons, complaint or other initial pleading in any other manner permitted by law.
(n) No printed or other matter in any language (including, without limitation, the Registration Statement, notices, reports and promotional material) which mentions the Escrow Agent’s name or the rights, powers, or duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into issued by the other parties hereto or on such parties’ behalf unless the Escrow Agent shall first have given its specific written consent thereto (which consent shall not be unreasonably withheld, conditioned or delayed). The Escrow Agent hereby consents to the use of its name and the reference to the escrow arrangement in the Registration Statement (including all exhibits thereto) and the Placement Agency Agreement and in the filings made by the Company under the Securities Exchange Act of 1934, as amended including the filing of this AgreementAgreement as an exhibit thereto.
(go) The Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent shall be permitted liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to act as counsel for lost profits) even if the Subscriber in any dispute as to the disposition Escrow Agent has been advised of the Company Documents and Subscriber Documents, likelihood of such loss or damage or regardless of the form of action.
(q) In the event funds transfer instructions are given (other than in any other dispute between writing at the Subscriber and Company which is unrelated to the time of execution of this Escrow Agreement), whether in writing, by telecopy or not otherwise, the Escrow Agent is then holding authorized to seek confirmation of such instructions by telephone call-back to the Company Documents person or persons designated on Exhibit E hereto, and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) may rely upon the confirmation of anyone purporting to be the person or persons so designated. The provisions of this Section 4.1 shall survive the resignation of individuals authorized to give or confirm funds transfer instructions may be changed only in a writing actually received and acknowledged by the Escrow Agent. The Escrow Agent and the beneficiary’s bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by the Lead Placement Agent or the termination Company to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank. The Escrow Agent may apply any of the escrowed funds for any payment order it executes using any such identifying number, even where its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary’s bank or an intermediary bank designated. The parties to this Agreement.Escrow Agreement acknowledge that these security procedures are commercially reasonable. All funds transfer instructions must include the signature of the person(s) authorizing said funds transfer as designated on Exhibit E.
Appears in 1 contract
Sources: Escrow Agreement (Polymedix Inc)
Concerning the Escrow Agent. 4.1(a) Purchaser, on the one hand, and Seller, on the other, will pay the Escrow Agent the fees detailed in Schedule 1 hereto for the services to be rendered hereunder and will pay or reimburse the Escrow Agent upon request for all reasonable expenses, disbursements and advances incurred or made by it in connection with carrying out its duties hereunder, including, without limitation, trading commissions and fees and reasonable attorney’s fees. Duties and Responsibilities The Escrow Agent is hereby granted a prior lien upon any property, cash or assets of the Escrow AgentFund with respect to its unpaid fees, nonreimbursed expenses and unsatisfied indemnification rights, superior to the interests of any other persons or entities. The Escrow Agent's duties Agent will have the right to set off and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that deduct any unpaid fees, nonreimbursed expenses and/or unsatisfied indemnification rights from amounts on deposit in the Escrow Agent (i) shall not be responsible for or bound by, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counselFund.
(b) The Subscriber Seller and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, Purchaser will jointly and severally, agree to severally indemnify and hold harmless the Escrow Agent and each director, employee, attorney, agent and affiliate of the Escrow Agent for, and to hold it harmless against, any loss, liability or expense incurred unless caused by or arising out of Escrow Agent's partnersgross negligence, employees, agents and representatives for any action taken willful misconduct or omitted to be taken by bad faith on the part of the Escrow Agent or any breach by the Escrow Agent of them the terms of this Escrow Agreement, arising out of or in connection with its entering into this Escrow Agreement and carrying out its duties hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability of liability. The obligations of Seller and Purchaser under this Agreement, except in Section 7(b) will survive the case termination of gross negligence this Escrow Agreement and the resignation or willful misconduct on removal of the Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber Notwithstanding the foregoing, as between Seller and Company jointly and severally agree Purchaser, any payment to reimburse be made to the Escrow Agent for reasonable outside counsel feespursuant to Section 7(a) or 7(b) will be borne 50% by Purchaser and 50% by Seller, to the extent authorized hereunder severally and incurred in connection with the performance of its duties and responsibilities hereundernot jointly.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) will prepare and deliver to Purchaser and Seller within ten business days after the end of each calendar month or partial calendar month ending prior written notice of resignation to or on the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue termination of this Escrow Agreement a written account describing all transactions with respect to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any Account during such courtcalendar month.
(e) The duties and responsibilities of the Escrow Agent does not have under this Agreement will be determined solely by the express provisions of this Escrow Agreement, and no other or further duties or responsibilities will not have be implied.
(f) The Escrow Agent may act upon any interest instrument or other writing provided by a duly authorized officer of any of the parties hereto believed by it in good faith to be genuine, and to be signed or presented by the Company Documents proper person and Subscriber Documents, but is serving only on the legal advice of its counsel in making payments as escrow agent, having only possession thereofprovided herein. The Escrow Agent shall will not be liable in connection with the performance by it of its duties pursuant to the provisions of this Escrow Agreement, except for any loss resulting from its own willful misconduct, gross negligence or breach by it of the making or retention express terms of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber DocumentsIN NO EVENT WILL THE ESCROW AGENT BE LIABLE, in any other dispute between the Subscriber and Company which is unrelated to the Escrow AgreementDIRECTLY OR INDIRECTLY, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunderFOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
(h) The provisions Escrow Agent will have the right, but not the obligation, to consult with counsel of choice and will not be liable for action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel. If the Escrow Agent becomes involved in litigation on account of this Section 4.1 shall survive Escrow Agreement, it will have the resignation right to retain counsel and will have a first lien on the property deposited hereunder for any and all costs, attorneys’ fees, charges, disbursements, and expenses in connection with such litigation; and will be entitled to reimburse itself therefor out of the property deposited hereunder, and if it will be unable to reimburse itself from the property deposited hereunder, the parties hereto jointly and severally agree to pay to the Escrow Agent on demand its reasonable charges, counsel and attorneys’ fees, disbursements, and expenses in connection with such litigation. The Escrow Agent will have the right to perform any of its duties hereunder through agents, attorneys, custodians or nominees without liability for the acts or nonaction of any such party selected with due care.
(i) Any banking association or corporation into which the Escrow Agent may be merged, converted or with which the Escrow Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent will be a party, or any banking association or corporation to which all or substantially all of the corporate trust or escrow business of the Escrow Agent will be sold or otherwise transferred, will succeed to all the Escrow Agent’s rights, obligations and immunities hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
(j) Notwithstanding any other provision of this Escrow Agreement, the Escrow Agent will not be obligated to perform any obligation hereunder and will not incur any liability for the nonperformance or breach of any obligation hereunder to the extent that the Escrow Agent is delayed in performing, unable to perform or breaches such obligation because of acts of God, war, terrorism, fire, floods, strikes, electrical outages, equipment or transmission failures, or other causes reasonably beyond its control.
(k) In the event funds transfer instructions are given (other than in writing at the time of the execution of the Escrow Agreement), whether in writing, by telecopier 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 1 hereto, and the Escrow Agent may rely upon the confirmations of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by the Escrow Agent. The parties to the Escrow Agreement acknowledge that such security procedure is commercially reasonable. It is understood that the Escrow Agent and the beneficiary’s bank in any funds transfer may rely solely upon any account numbers or similar identifying number provided by any party hereto to identify (i) the beneficiary, (ii) the beneficiary’s bank or (iii) an intermediary bank. The Escrow Agent may apply funds for any payment order it executes using any such identifying number, even where its use may result in a person other than the beneficiary being paid, or the termination transfer of this Agreementfunds to a bank other than the beneficiary’s bank, or an intermediary bank, designated.
Appears in 1 contract
Sources: Acquisition Agreement (Imation Corp)
Concerning the Escrow Agent. 4.1. Duties (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and Responsibilities of no implied duties or obligations shall be read into this Agreement against the Escrow Agent. Escrow Agent agrees to release any property held by it hereunder (the “Escrowed Property”) in accordance with the terms and conditions set forth in this Agreement.
(b) The Escrow Agent's duties Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, may assume the validity and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for accuracy of any statement or bound byassertion contained in such a writing or instrument, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized purporting to give notice any writing, notice, advice or make any statement or execute any document instructions in connection with the provisions hereof is so authorized; (v) has been duly authorized to do so. The Escrow Agent shall not be under liable in any duty manner for the sufficiency or correctness as to give form, manner, and execution, or validity of any instrument deposited in this escrow, nor as to the property held identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the safekeeping of the Escrowed Property, and for the disposition of the same in accordance with this Agreement. Escrow Agent shall not be deemed to have knowledge of any matter or thing unless and until Escrow Agent has actually received written notice of such matter or thing and Escrow Agent shall not be charged with any constructive notice whatsoever.
(c) Escrow Agent shall hold in escrow, pursuant to this Agreement, the Escrowed Property actually delivered and received by Escrow Agent hereunder any greater degree of care than hereunder, but Escrow Agent gives its own similar property; shall not be obligated to ascertain the existence of (or initiate recovery of) any other property that may be part or portion of the Collateral, or to become or remain informed with respect to the possibility or probability of additional Collateral being realized upon or collected at any time in the future, or to inform any parties to this Agreement or any third party with respect to the nature and extent of any Collateral realized and received by Escrow Agent (viexcept upon the written request of such party), or to monitor current market values of the Collateral. Further, Escrow Agent shall not be obligated to proceed with any action or inaction based on information with respect to market values of the Collateral which Escrow Agent may in any manner learn, nor shall Escrow Agent be obligated to inform the parties hereto or any third party with respect to market values of any of the Collateral at any time, Escrow Agent having no duties with respect to investment management or information, all parties hereto understanding and intending that Escrow Agent’s responsibilities are purely ministerial in nature. Any reduction in the market value or other value of the Collateral while deposited with Escrow Agent shall be at the sole risk of Pledgor and Secured Party. If all or any portion of the Escrowed Property is in the form of a check or in any other form other than cash, Escrow Agent shall deposit same as required but shall not be liable for the nonpayment thereof, nor responsible to enforce collection thereof.
(d) In the event instructions from Secured Party, Pledgor, or any other party would require Escrow Agent to expend any monies or to incur any cost, Escrow Agent shall be entitled to refrain from taking any action until it receives payment for such costs. It is agreed that the duties of Escrow Agent are purely ministerial in nature and shall be expressly limited to the safekeeping of the Escrowed Property and for the disposition of same in accordance with this Agreement. Secured Party and the Company, jointly and severally, each hereby indemnifies Escrow Agent and holds it harmless from and against any and all claims, liabilities, damages, costs, penalties, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees or charges of any character or nature (collectively, the “Claims”), which it may consult counsel satisfactory incur or with which it may be threatened, directly or indirectly, arising from or in any way connected with this Agreement or which may result from Escrow Agent’s following of instructions from Secured Party or Pledgor, and in connection therewith, indemnifies Escrow Agent against any and all expenses, including attorneys’ fees and the cost of defending any action, suit, or proceeding or resisting any Claim, whether or not litigation is instituted, unless any such Claims arise as a result of Escrow Agent’s gross negligence or willful misconduct. Escrow Agent shall be vested with a lien on all Escrowed Property under the terms of this Agreement, for indemnification, attorneys’ fees, court costs and all other costs and expenses arising from any suit, interpleader or otherwise, or other expenses, fees or charges of any character or nature, which may be incurred by Escrow Agent by reason of disputes arising between Pledgor, Secured Party or any third party as to the correct interpretation of this Agreement, and instructions given to Escrow Agent hereunder, or otherwise, with the right of Escrow Agent, regardless of the opinion instruments aforesaid and without the necessity of instituting any action, suit or proceeding, to hold any property hereunder until and unless said additional expenses, fees and charges shall be fully paid. Any fees and costs charged by the Escrow Agent for serving hereunder shall be paid by the Company.
(e) In the event Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from Secured Party, the Company or from third persons with respect to the Escrowed Property, which, in Escrow Agent’s sole opinion, are in conflict with each other or with any provision of this Agreement, Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise in writing by Pledgor and Secured Party and said third persons, if any, or by a final order or judgment of a court of competent jurisdiction. If any of the parties shall be in disagreement about the interpretation of this Agreement, or about the rights and obligations, or the propriety of any action contemplated by the Escrow Agent hereunder, the Escrow Agent may, at its sole discretion, deposit the Escrowed Property with a court having jurisdiction over this Agreement, and, upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully cease and terminate. The Escrow Agent shall be indemnified by the Pledgor and Secured Party for all costs, including reasonable attorneys’ fees, in connection with the aforesaid proceeding, and shall be fully protected in suspending all or a part of its activities under this Agreement until a final decision or other settlement in the proceeding is received. In the event Escrow Agent is joined as a party to a lawsuit by virtue of the fact that it is holding the Escrowed Property, Escrow Agent shall, at its sole option, either: (i) tender the Collateral in its possession to the registry of the appropriate court; or (ii) disburse the Collateral in its possession in accordance with the court’s ultimate disposition of the case, and Secured Party and Pledgor hereby, jointly and severally, indemnify and hold Escrow Agent harmless from and against any damages or losses in connection therewith including, but not limited to, reasonable attorneys’ fees and court costs at all trial and appellate levels.
(f) The Escrow Agent may consult with counsel of its own choice (and the costs of such counsel to shall be paid by the Pledgor and Secured Party) and shall have full and complete authorization and protection in respect of for any action taken, taken or suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making mistakes of fact or retention error of judgment, or for any actions or omissions of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties kind, unless caused by its willful misconduct or obligations shall be read into this Agreementgross negligence.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as may resign upon ten (10) days’ written notice to the disposition of the Company Documents parties in this Agreement. If a successor Escrow Agent is not appointed by Secured Party and Subscriber DocumentsPledgor within this ten (10) day period, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues may petition a court of competent jurisdiction to act as the Escrow Agent hereundername a successor.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Each Interested Party acknowledges and Company acknowledge and agree agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or bound bydescribed herein (including without limitation the Business Combination Agreement, other than with respect to the definitions of certain terms used herein, which definitions are set forth in the Business Combination Agreement), or for determining or compelling compliance therewith, and shall not otherwise be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant tobound thereby, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are expressly and specifically assumed by set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent pursuant to this Agreement; Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person Person, and shall have no responsibility or party, without being required duty to make inquiry as to or to determine the authenticity or correctness of any fact stated therein or the propriety genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the service thereof; (iv) may assume that any person believed by authority of the Escrow Agent in good faith to be authorized to give notice Person signing or make any statement or execute any document in connection with presenting the provisions hereof is so authorized; same, and (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agentit, including in-house counsel, and the opinion or advice of such counsel to in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives anyone for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, it hereunder except in the case of the Escrow Agent’s gross negligence or willful misconduct on Escrow Agent's part committed in its capacity (as finally adjudicated by a court of competent jurisdiction). In no event shall the Escrow Agent under this Agreement. The be liable for any indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Escrow Agent shall owe a duty only to has been informed of the Subscriber likelihood of such loss or damage and Company under this Agreement and to no other personregardless of the form of action.
(c) The Subscriber and Company jointly and severally agree to reimburse Escrow Agent shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by the Escrow Agent for reasonable outside counsel feesthan any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except to the extent authorized hereunder and incurred in connection with that such action or omission of any book-entry depository, securities intermediary or other subescrow agent was caused by the performance Escrow Agent’s own gross negligence or willful misconduct (as finally adjudicated by a court of its duties and responsibilities hereundercompetent jurisdiction).
(d) The Escrow Agent may at is hereby authorized, in making or disposing of any time resign investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as Escrow Agent hereunder by giving five (5) days prior written notice a subagent of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York or for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtthird person or dealing as principal for its own account.
(e) The Notwithstanding any term appearing in this Agreement to the contrary, in no instance shall the Escrow Agent does not have and will not have be required or obligated to distribute any interest Escrowed Shares (or take other action that may be called for hereunder to be taken by the Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Agreement in good form, or (ii) passage of the Company Documents and Subscriber Documentsapplicable time period (or both, but is serving only as escrow agentapplicable under the terms of this Agreement), having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from as the making or retention of any investment in accordance with this Escrow Agreementcase may be.
(f) This Agreement sets Unless and except to the extent otherwise expressly set forth exclusively herein, all deposits and payments hereunder, or pursuant to the duties of terms hereof (including without limitation all payments to the Escrow Agent with respect pursuant to any and all matters pertinent thereto and no implied duties or obligations Section 8 below) shall be read into this Agreementin U.S. dollars.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Each Interested Party acknowledges and Company acknowledge and agree agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or bound bydescribed herein (including without limitation the Agreement), or for determining or compelling compliance therewith, and shall not otherwise be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant tobound thereby, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are expressly and specifically assumed by set forth in this Escrow Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Escrow Agreement against or on the part of the Escrow Agent pursuant to this Agreement; Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person person, and shall have no responsibility or party, without being required duty to make inquiry as to or to determine the authenticity or correctness of any fact stated therein or the propriety genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the service thereof; (iv) may assume that any authority of the person believed by signing or presenting the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; same, and (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agentit, including in-house counsel, and the opinion or advice of such counsel to in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives anyone for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, it hereunder except in the case of the Escrow Agent's gross negligence or willful misconduct on in breach of the terms of this Escrow Agent's part committed in its capacity as Agreement. In no event shall the Escrow Agent under this Agreement. The be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even, if the Escrow Agent shall owe a duty only to has been informed of the Subscriber likelihood of such loss or damage and Company under this Agreement and to no other personregardless of the form of action.
(c) The Subscriber and Company jointly and severally agree to reimburse Escrow Agent shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by the Escrow Agent for reasonable outside counsel feesthan any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except to the extent authorized hereunder and incurred that such action or omission of any book-entry depository, securities intermediary or other subescrow agent was caused by the Escrow Agent's own gross negligence or willful misconduct in connection with the performance breach of its duties and responsibilities hereunderthis Escrow Agreement.
(d) The Escrow Agent may at is hereby authorized, in making or disposing of any time resign investment permitted by this Escrow Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as Escrow Agent hereunder by giving five (5) days prior written notice a subagent of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York or for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtthird person or dealing as principal for its own account.
(e) The Notwithstanding any term appearing in this Escrow Agreement to the contrary, in no instance shall the Escrow Agent does not have and will not have be required or obligated to distribute any interest Escrow Property (or take other action that may be called for hereunder to be taken by the Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Escrow Agreement in good form, or (ii) passage of the Company Documents and Subscriber Documentsapplicable time period (or both, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from applicable under the making or retention terms of any investment in accordance with this Escrow Agreement.), as the case may be
(f) This Agreement sets Unless and except to the extent otherwise expressly set forth exclusively herein, all deposits and payments hereunder, or pursuant to the duties of terms hereof (including without limitation all payments to the Escrow Agent with respect pursuant to any and all matters pertinent thereto and no implied duties or obligations Section 6 hereof), shall be read into this Agreementin U.S. dollars.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible liable for any actions taken or bound byomitted by it, or any action suffered by it to be taken or omitted by it, in good faith and in the exercise of its own best judgment, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on conclusively and shall be protected in acting or refraining from acting upon any written noticeorder, instructionnotice demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, statement, request report or other paper or document furnished (not only as to it hereunder its due execution and the validity and effectiveness of its provision, but also as to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent in good faith to be genuine and to have been be signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) person. The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for bound by any action taken notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by Escrow Agent in good faith and believed by Escrow Agent a writing delivered to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any signed by the proper party or parties and, if the duties or rights of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by the Escrow Agent or any of them hereunderare affected, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in unless it shall have given its capacity as Escrow Agent under this Agreementprior written consent thereto. The Escrow Agent shall owe a duty only to not be responsible for the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse sufficiency or accuracy, the form of, or the execution validity, value or genuineness of any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred be responsible or liable in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date respect on account of the resignation as specified in such noticeidentity, authority or rights of the Subscriber and Company will issue person executing or delivering or purporting to execute or deliver any document or property paid or delivered by the Escrow Agent a Joint Instruction authorizing delivery of under the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereofprovisions hereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention which may be incurred by reason of any investment of any monies or properties which it holds hereunder. The Escrow Agent shall have the right to assume, in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties absence of written notice to the contrary from the proper person or persons, that a fact or an event by reason of which an action would or might be taken by the Escrow Agent with respect to does not exist or has not occurred, without incurring liability for any action taken or omitted, in good faith and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) in the exercise of its own best judgment, in reliance upon such assumption. The Escrow Agent shall be permitted to act as indemnified and held harmless by the Company from and against any expenses, including counsel for fees and disbursements, or loss suffered by the Subscriber Escrow Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any dispute as way directly or indirectly arises out of or relates to this Agreement, the services of the Escrow Agent hereunder, the monies or other property held by it hereunder or any such expense or loss. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if a claim in respect thereof shall be made against the other parties hereto, notify such parties thereof in writing; but the failure by the Escrow Agent to give such notice shall not relieve any party from any liability which such party may have to the Escrow Agent hereunder. Upon the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow Account or it may deposit the Escrow Account with the clerk of any appropriate court or it may retain the Escrow Account pending receipt of a final, non-appealable order of a court having jurisdiction over all of the parties hereto directing to whom and under what circumstances the Escrow Account is to be disbursed and delivered. The Escrow Agent shall be entitled to reasonable compensation from the Company Documents for all services rendered by it hereunder. From time to time on and Subscriber Documentsafter the date hereof, in any other dispute between the Subscriber and Company which is unrelated shall deliver or cause to be delivered to the Escrow Agreement, whether Agent such further documents and instruments and shall do or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues cause to act be done such further acts as the Escrow Agent hereunder.
shall reasonably request (h) The provisions of this Section 4.1 shall survive the resignation of it being understood that the Escrow Agent or shall have no obligation to make such request) to carry out more effectively the termination provisions and purposes of this Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder. The Escrow Agent may resign at any time and be discharged from its duties as Escrow Agent hereunder by its giving the Company at least thirty (30) days' prior written notice thereof. As soon as practicable after its resignation, the Escrow Agent shall turn over to a successor escrow agent appointed by the Company, all monies and property held hereunder upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no new escrow agent is so appointed in the sixty (60) day period following the giving of such notice of resignation, the Escrow Agent may deposit the Escrow Account with any court it deems appropriate. The Escrow Agent shall resign and be discharged form its duties as Escrow Agent hereunder if so requested in writing at anytime by the Company, provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided above. Notwithstanding anything herein to the contrary, the Escrow Agent shall not be relieved from liability thereunder for its own gross negligence or its own willful misconduct.
Appears in 1 contract
Sources: Escrow Agreement (International Commerce Development Corp)
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Each Interested Party acknowledges and Company acknowledge and agree agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or bound bydescribed herein (including without limitation the Merger Agreement), or for determining or compelling compliance therewith, and shall not otherwise be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant tobound thereby, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are expressly and specifically assumed by set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent pursuant to this Agreement; Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person person, and shall have no responsibility to make inquiry as to or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the service thereof; (iv) may assume that any authority of the person believed by signing or presenting the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; same, and (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agentit, including in-house counsel, and the opinion or advice of such counsel to in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives anyone for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, it hereunder except in the case of the Escrow Agent’s gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under breach of the terms of this Agreement. The In no event shall the Escrow Agent shall owe a duty only be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Subscriber Escrow Agent has been informed of the likelihood of such loss or damage and Company under this Agreement and to no other personregardless of the form of action.
(c) The Subscriber and Company jointly and severally agree to reimburse Escrow Agent shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subescrow agent employed by the Escrow Agent for reasonable outside counsel feesthan any such book-entry depository, securities intermediary or other subescrow agent has to the Escrow Agent, except to the extent authorized hereunder and incurred that such action or omission of any book-entry depository, securities intermediary or other subescrow agent was caused by the Escrow Agent’s own gross negligence or willful misconduct in connection with the performance breach of its duties and responsibilities hereunderthis Agreement.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified is hereby authorized, in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention disposing of any investment permitted by this Agreement, or in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties carrying out any sale of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into Property permitted by this Agreement.
, to deal with itself (gin its individual capacity) The Escrow Agent shall be permitted to act as counsel for the Subscriber in or with any dispute as to the disposition one or more of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreementits affiliates, whether it or not the Escrow Agent such affiliate is then holding the Company Documents and Subscriber Documents and continues to act acting as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation a subagent of the Escrow Agent or the termination of this Agreementfor any third person or dealing as principal for its own account.
Appears in 1 contract
Concerning the Escrow Agent. 4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Each Interested Party acknowledges and Company acknowledge and agree agrees that the Escrow Agent (i) shall not be responsible for any of the agreements referred to or bound bydescribed herein (including without limitation the Stock Purchase Agreement), or for determining or compelling compliance therewith, and shall not otherwise be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant tobound thereby, any other agreement or otherwise; (ii) shall be obligated only for the performance of such duties as are expressly and specifically assumed by set forth in this Agreement on its part to be performed, each of which is ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent pursuant to this Agreement; Agent, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with reasonably acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and reasonably believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person person, and shall have no responsibility or party, without being required duty to make inquiry as to or to determine the authenticity or correctness of any fact stated therein or the propriety genuineness, accuracy or validity thereof (or any signature appearing thereon), or of the service thereof; (iv) may assume that any authority of the person believed by signing or presenting the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; same, and (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agentit, including in-house counsel, and the opinion or advice of such counsel to in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives anyone for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, it hereunder except in the case of the Escrow Agent’s gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under breach of the terms of this Agreement. The In no event shall the Escrow Agent shall owe a duty only be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Subscriber Escrow Agent has been informed of the likelihood of such loss or damage and Company under this Agreement and to no other personregardless of the form of action.
(c) The Subscriber and Company jointly and severally agree to reimburse Escrow Agent shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other sub-escrow agent employed by the Escrow Agent than it shall have for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities own actions or omissions hereunder.
(d) The Escrow Agent may at is hereby authorized, in making or disposing of any time resign investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as Escrow Agent hereunder by giving five (5) days prior written notice a subagent of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York or for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such courtthird person or dealing as principal for its own account.
(e) The Notwithstanding any term of this Agreement to the contrary, in no instance shall the Escrow Agent does not have and will not have be required or obligated to distribute any interest Escrow Funds (or take other action than may be called for hereunder to be taken by the Escrow Agent) sooner than two (2) Business Days after (i) it has received the applicable documents required under this Agreement in good form, or (ii) passage of the Company Documents and Subscriber Documentsapplicable time period (or both, but is serving only as escrow agentapplicable under the terms of this Agreement), having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from as the making or retention of any investment in accordance with this Escrow Agreementcase may be.
(f) This Agreement sets Unless and except to the extent otherwise expressly set forth exclusively herein, all deposits and payments hereunder, or pursuant to the duties of terms hereof (including without limitation all payments to the Escrow Agent with respect pursuant to any and all matters pertinent thereto and no implied duties or obligations Section 7), shall be read into this Agreementin U.S. dollars.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Parametric Technology Corp)
Concerning the Escrow Agent. 4.1. Duties The following shall control the fees, resignation, discharge, liabilities and Responsibilities indemnification of the Escrow Agent. The Escrow Agent's duties and responsibilities shall be subject to the following terms and conditions:
(a) The Subscriber Escrow Agent shall charge no fees for its service hereunder, but shall be reimbursed for all reasonable expenses, disbursements and Company acknowledge and agree that advancements incurred or made by the Escrow Agent in performance of his duties hereunder, one-half (i1/2) of any such expenses, disbursements and advances to be paid by Buyer and one-half (1/2) by the Seller, other than expenses for investments authorized hereunder which shall be borne by Buyer.
(b) The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving written notice of such resignation to the parties hereto, specifying the date when such resignation shall take effect. Upon such notice, a successor escrow agent shall be appointed with the unanimous consent of the parties hereto, and the service of such successor escrow agent shall be effective as of the date of resignation specified in such notice, which date shall not be responsible for or bound byless than thirty (30) days after the giving of such notice. If the parties hereto are unable to agree upon a successor escrow agent within thirty (30) days after such notice, and shall not be required to inquire into whether either the Subscriber or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to, any other agreement or otherwise; (ii) Escrow Agent shall be obligated only for authorized to appoint its successor. The Escrow Agent shall continue to serve until its successor accepts the performance of escrow by written notice to the parties hereto and the Escrow Agent deposits the escrow fund with such successor escrow agent.
(c) The Escrow Agent undertakes to perform such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) set forth herein and may rely on conclusively rely, and shall be protected in acting or refraining from acting upon acting, on any written notice, instruction, instrument, statement, request instrument or document furnished to it hereunder and signature believed by the Escrow Agent in good faith it to be genuine and to have been signed or presented by the proper person party or party, without being required to determine the authenticity or correctness of any fact stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be parties duly authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
(b) The Subscriber and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscriber and Company, jointly and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the reasonable fees of outside counsel and other reasonable costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent's part committed in its capacity as Escrow Agent under this Agreementdo so. The Escrow Agent shall owe a duty only to have no responsibility for the Subscriber and Company under this Agreement and to no other person.
(c) The Subscriber and Company jointly and severally agree to reimburse the Escrow Agent for reasonable outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Subscriber and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscriber and Company will issue to the Escrow Agent a Joint Instruction authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscriber and Company. If no successor Escrow Agent is named by the Subscriber and Company, the Escrow Agent may apply to a court of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk contents of any such courtwriting contemplated herein and may rely without any liability upon the contents thereof.
(e) The Escrow Agent does not have and will not have any interest in the Company Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow Agreement.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the Subscriber in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscriber and Company which is unrelated to the Escrow Agreement, whether or not the Escrow Agent is then holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Salem Communications Corp /De/)