Escrow Agent. The Escrow Agent referred to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Group. The Escrow Agent shall not be charged with any knowledge until such facts are communicated to the Escrow Agent in writing. The Escrow Agent shall not be required to institute or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibility.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Real Estate (C & S Bancorporation Inc)
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by written instructions given by a Company Stockholder after Parent has advised Escrow Agent in writing that the ASR 135 restriction period has expired, the Escrow Agent shall not sell, transfer or otherwise dispose of in any manner all or any portion of the Escrow Fund, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. The Escrow Agent referred shall neither be responsible for or under, nor chargeable with knowledge of the terms and conditions of, any other agreement, instrument or document in connection herewith, including but not limited to above the Merger Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be Rich▇▇▇ ▇entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment GroupThe Escrow Agent may assume that any person purporting to give any notice in accordance with the provisions of this Agreement has been duly authorized to do so. The Escrow Agent shall have no responsibility for the contents of any such writing contemplated herein and may conclusively rely without any liability upon the contents thereof.
(d) The Escrow Agent shall not be charged with liable for any knowledge until such facts are communicated error of judgment, or any action taken, suffered or omitted to be taken, hereunder except in the Escrow Agent in writingcase of its gross negligence, bad faith or willful misconduct. The Escrow Agent may consult with counsel of its own choice and shall not be required have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel.
(e) The Escrow Agent shall have no duty as to institute the collection or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out protection of the gross negligence Escrow Fund or willful misconduct income thereon, nor as to the preservation of Escrow Agent. Seller and Purchaser shall at all times indemnify any rights pertaining thereto, beyond the Escrow Agent against all actions, proceedings, claims or demands arising out safe custody of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, any such property actually in its possession.
(f) The Escrow Agent shall be empowered to dispose paid its fees and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of the Earn▇▇▇ ▇▇▇ey Deposit as provided for outside counsel, if any, incurred or made by it in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibility.connection with the
Appears in 1 contract
Escrow Agent. (a) The parties acknowledge that Escrow Agent referred to above shall be Rich▇▇▇ ▇. ▇▇is holding the ▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Group. The Money solely as a stakeholder at their request and for their convenience, that Escrow Agent shall not be charged with any knowledge until such facts are communicated deemed to be the Escrow Agent agent of either party in writing. The carrying out its role as escrow agent hereunder, and that Escrow Agent shall not be required liable to institute either party for any act or maintain omission on its part unless taken in willful disregard of this Agreement or involving its gross negligence. Seller and Purchaser hereby jointly and severally indemnify and hold Escrow Agent harmless from and against any litigation unless indemnified to his satisfaction for his counsel feesand all claims, costs, liabilities and expenses (including reasonable attorneys’ fees and disbursements and all other expenses and liabilities to court costs) which he may, in his judgment, be subjected Escrow Agent may incur in connection with such actionthe performance of its duties hereunder, except with respect to matters arising out actions or omissions taken by Escrow Agent in willful disregard of the gross negligence this Agreement or willful misconduct of involving Escrow Agent. Seller and Purchaser shall at all times indemnify the ’s gross negligence.
(b) Escrow Agent against may act or not act in its role as escrow agent hereunder in full reliance upon and with the advice of counsel which it may select and shall be fully exculpated from all actions, proceedings, claims liability in so acting or demands arising out not acting.
(c) Escrow Agent has acknowledged its agreement to act as escrow agent in accordance with this Agreement by signing in the place indicated on the signature page of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Agreement.
(d) Escrow Agent shall be empowered to dispose of may at any time discharge its duties hereunder by depositing the Earn▇▇▇▇▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into Money with a court of competent jurisdiction pending resolution of the deposition of said funds and to interplead notifying Seller and Purchaser.
(e) Seller and Purchaser in respect thereof, and upon depositing said funds, each agree to deliver to Escrow Agent shall bear no further responsibilityan IRS Form W9 upon the execution and delivery of this Agreement. The parties acknowledge that until Escrow Agent receives a completed W9 from each of Seller and Purchaser the ▇▇▇▇▇▇▇ Money will be held in a non-interest bearing account.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Westwood One Inc /De/)
Escrow Agent. The (a) Escrow Agent referred may act upon any instrument or other writing believed by it in good faith to above be genuine and to be signed or presented by the proper persons, and it shall not be liable in connection with the performance by it of its duties pursuant to the provisions of this Escrow Agreement, except for its own willful misconduct or gross negligence. Without limiting the foregoing, Escrow Agent shall have no responsibility for the accuracy of any report or other document or certificate filed with it hereunder. Escrow Agent shall in no event be liable for any payments except to the extent of the Escrow Fund.
(b) Escrow Agent shall be Rich▇▇▇ ▇reimbursed by the Company for its reasonable expenses incurred in connection with the performance by it of such services. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment GroupEscrow Agent will receive a fee of $2,500 upon the disposition of the Escrowed Shares. The Company shall be responsible for such fee.
(c) Until such time as the Escrowed Shares are delivered pursuant to Section 4 above, Aimers shall from voting the Escrowed Shares or other securities in the Escrow Fund unless agreed to in writing by the Company, provided that Aimers shall not take any actions or inactions which would have a material adverse effect on the provisions set forth under this Escrow Agreement.
(d) Escrow Agent, or any successor to it hereafter appointed, may at any time resign by giving notice in writing to the parties and shall be discharged of its duties hereunder upon the appointment of the successor escrow agent as hereinafter provided. In the event of any such resignation, the parties shall appoint a successor escrow agent, which shall be a bank or trust company, or other firm or corporation organized under the laws of the United States of America or any state thereof. Any such successor escrow agent shall deliver to the parties a written instrument accepting such appointment hereunder, and thereupon it shall succeed to all the rights and duties of Escrow Agent hereunder and shall be entitled to receive and hold in Escrow all the Escrow Funds and any assets then held by the predecessor escrow agent hereunder.
(e) Escrow Agent shall not be charged with responsible for the identity, authority or rights of any knowledge until such facts are communicated person, firm or corporation, executing or delivering or purporting to the execute or deliver this Escrow Agent in writing. The Escrow Agent shall not be required to institute Agreement or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out of the gross negligence document or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims security deposited hereunder or demands arising out of this transaction, except with respect to matters arising out of the gross negligence any endorsement thereof or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, assignment thereof.
(f) Escrow Agent shall have no duties or responsibilities except as expressly provided in this Escrow Agreement and shall neither be obligated to recognize nor have any liability or responsibility arising under any other agreement to which Escrow Agent is not a party, even though reference thereto may be made herein or a copy thereof attached hereto. The Company and Aimers acknowledge that the option Escrow Agent has rendered and will continue to deposit render legal advice to the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser in respect thereofCompany, and upon depositing said funds, Escrow Agent shall bear no further responsibilitythe Company and Aimers hereby waive any claims of conflict of interest by reason of such legal representation.
Appears in 1 contract
Escrow Agent. The Escrow Agent referred to above shall be RichTo induce ▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Colonial Investment Group. and ▇▇▇▇▇, P.C. to serve as the escrow agent and to act in such capacity hereunder, it is agreed by the parties hereto that:
(a) The Escrow Agent escrow agent shall not be charged under any duty to give the property held by it hereunder (the "Escrowed Property") any greater degree of care than it gives its own similar property.
(b) This Section 8 of this Agreement expressly sets forth all the duties of the escrow agent with respect to any knowledge until such facts are communicated to and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent in writingescrow agent. The Escrow Agent escrow agent shall not be required to institute bound by the provisions of any agreement among the other parties hereto except this Section 8 of this Agreement.
(c) The escrow agent shall not be liable, except for its own gross negligence or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such actionwillful misconduct and, except with respect to matters arising out of the claims based upon such gross negligence or willful misconduct of Escrow Agent. Seller that are successfully asserted against the escrow agent, the other parties hereto shall jointly and Purchaser shall at severally indemnify and hold harmless the escrow agent from and against any and all times indemnify the Escrow Agent against all losses, liabilities, claims, actions, proceedingsdamages and expenses, claims or demands including, without limitation, reasonable attorneys' fees and disbursements, arising out of or in connection with this transactionAgreement.
(d) The escrow agent shall be entitled to rely upon any order, except 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 to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The escrow agent may act pursuant to the advice of counsel with respect to matters arising out any matter relating to this 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 the Escrowed Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The other parties shall, on a joint and several basis, pay or reimburse the escrow agent upon request for any and all expenses, if any, incurred by the escrow agent in connection with this Agreement and transfer taxes or other taxes relating to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the escrow agent from any amounts that it is obligated to pay in the way of such expenses and taxes. This subparagraph and subparagraph (c) shall survive notwithstanding any termination of this Agreement or the resignation of the gross negligence escrow agent.
(g) The escrow agent makes no representation as to the validity, value, genuineness or willful misconduct the collectability of Escrow Agent. Upon failure any security or other document or instrument held by or delivered to it.
(h) The 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 Purchaser to comply with competent jurisdiction, whereupon the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent escrow agent shall be empowered to dispose discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liabilityescrow 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 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.
(i) In the event of a dispute any disagreement between Seller and Purchaser which cannot 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 resolved, Escrow Agent entitled to retain the Escrowed Property until the escrow agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into received (i) a final non-appealable order of a court of competent jurisdiction pending resolution directing delivery of the deposition 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 funds opinion is final and non-appealable.
(j) Notwithstanding anything to interplead Seller the contrary contained herein, the escrow agent's duties and obligations hereunder shall terminate upon the release and distribution of the Escrowed Property in accordance with the terms of this Agreement.
(k) Each of the Company and the Purchaser understands and agrees that, notwithstanding its duties as escrow agent hereunder, the escrow agent is the attorney for the Company, and, accordingly, neither any services as escrow agent hereunder nor any provisions hereof, either express or implied, shall restrict or inhibit the escrow agent in any way from representing the Company or its affiliates in any action, dispute, controversy, arbitration, suit or negotiation arising under this Agreement or under any other agreement or in any manner or context whatsoever, whether or not directly or indirectly involving the Company or its affiliates. Notwithstanding anything to the contrary contained herein, if at any time a law firm representing either Company or Purchasers serves or is serving as escrow agent, then with respect thereofto such law firm's capacity as escrow agent, and upon depositing said fundssuch counsel shall not for these purposes serve as the agent for either of the parties, Escrow Agent but shall bear no further responsibilitybe a fiduciary of both parties.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent referred shall hold the Escrow Fund in trust for the parties and, prior to above receipt of a Notice from USD conforming with paragraph 3(c), shall accept written instructions from Goffman regarding the exercise of options which are held in the Escrow Fund. With regard to all matters other than the exercise of such options or the notices set forth in paragraphs 3(b) and 3(d) above, instructions given to the Escrow Agent must be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Group. jointly executed by Goffman and USD.
(b) The Escrow Agent shall not in any way be charged with bound or affected by a notice of modification or cancellation of this Agreement unless written notice thereof is given to the Escrow Agent by Goffman and USD, nor shall the Escrow Agent be bound by any knowledge until such facts are communicated modification of its obligations hereunder unless the same shall be consented to by the Escrow Agent in writing. The Escrow Agent shall be entitled to rely upon any judgment, certification, demand or other writing delivered to it hereunder without being required to determine the validity, authenticity or the correctness of any facts stated therein, the propriety or validity of the service thereof, or the jurisdiction of any court issuing any judgment.
(c) The Escrow Agent shall not be under any duty to give the property held by it hereunder any greater care that it gives its own similar property.
(d) The Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine, and it may assume that any person purporting to give any notice or make any statement in connection with the provisions hereof has been duly authorized to do so.
(e) The Escrow Agent shall not be liable for any mistake of fact or error of judgment, or for any acts or omissions of any kind except as such act or omission constitutes willful misconduct, bad faith, gross negligence or fraud.
(f) The Escrow Agent shall not have any responsibility for the payment of taxes. Goffman hereby represents that his Social Security Number is ###-##-####. For tax and withholding purposes all dividends, income and proceeds of the Escrow Fund realized prior to a final distribution shall be allocable exclusively to Goffman.
(g) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent hereto. Except as otherwise expressly provided herein, the Escrow Agent shall not refer to, and shall not be bound by, the provisions of any other agreement and no implied duties or obligations shall be read into this Agreement against the Escrow Agent.
(h) USD and Goffman, jointly and severally, agree to indemnify the Escrow Agent and to hold the Escrow Agent harmless from and against any and all claims, actions, suits, proceedings, investigations, demands, damages, penalties, interest, expenses, fees or charges or any other liabilities of any character or nature, including attorneys' fees (whether suit is instituted or not and, if instituted, whether at trial or appellate level) (collectively, the "Liabilities"), whether raised by the parties hereto or any third party, which the Escrow Agent may incur or with which it may be threatened by reason of acting as Escrow Agent under this Agreement, and the Escrow Agent shall have a lien on the Escrow Fund for such indemnification which lien shall be prior to all other liens upon or claims against such Escrow Fund; provided, however, that the Escrow Agent shall not be entitled to indemnification for any Liabilities caused solely by its own gross negligence, willful misconduct, bad faith or fraud.
(i) The Escrow Agent shall not be required to institute or maintain defend any litigation action involving any matters referred to herein or which affect it or its duties, unless or until requested to do so by any party to this Agreement and then only upon receiving full indemnity, in character reasonably satisfactory to the Escrow Agent, against any and all Liabilities in relation thereto.
(j) If the parties to this Agreement shall be in disagreement concerning the interpretation of this Agreement, their rights and obligations under this Agreement or the propriety of any action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, but shall not be obligated to, file an interpleader action to resolve such disagreement. The Escrow Agent shall be indemnified to his satisfaction for his counsel all costs and expenses, including reasonable attorneys' fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected incurred in connection with such action, except interpleader action in accordance with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Section 4 (h) above.
(k) The Escrow Agent shall be empowered entitled to dispose be reimbursed for all costs and expenses incurred by it in the performance of its duties under this Agreement, including, without limitation, the Earn▇▇▇ ▇▇▇ey Deposit as provided for customary hourly rates of any of its representatives involved in said paragraph without incurring any liabilityperforming its duties hereunder, and such costs, expenses and fees shall be paid by USD and Goffman in equal proportions. In the event of a dispute between Seller and Purchaser which cannot be resolved, The Escrow Agent shall have a lien on the option to deposit Escrow Fund for such reimbursement obligations, which shall be the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and only permitted lien upon depositing said funds, such Escrow Agent shall bear no further responsibilityFund.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent referred to above shall receive no fee for its services hereunder. The Escrow Agent shall be Rich▇▇▇ ▇entitled to reimbursement, within 15 days of presentation of appropriate documented invoices, from the Company, of the Escrow Agent's reasonable expenses incurred to third parties in the performance of its duties hereunder; provided, however, the Escrow Agent shall not be entitled to reimbursement for fees incurred in connection with the negotiation and preparation of this Agreement or in connection with acting as Escrow Agent.
(b) To induce the Escrow Agent to act hereunder, it is further agreed that:
(i) The Escrow Agent shall not be under any duty to give the Escrowed Shares held by it hereunder any greater degree of care than it gives its own similar property.
(ii) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment GroupNo implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall not be charged bound by the provisions of any agreement among the other parties hereto (including the Purchase Agreement), except this Agreement.
(iii) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with any knowledge until respect to claims based upon such facts gross negligence or willful misconduct that are communicated to 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 attorneys' fees and disbursements, arising out of, and in writingconnection with, this Agreement. In no event shall the Escrow Agent be liable for consequential, indirect or punitive damages. This paragraph shall survive termination of this Agreement.
(iv) 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 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 any document in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent shall not be required to institute liable for any action taken or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements omitted in good faith and all other expenses and liabilities to which he may, in his judgment, be subjected in connection accordance with such actionadvice.
(v) The Escrow Agent does not have any interest in the Escrowed Shares deposited hereunder (except as provided in Section 4(a)), except with respect but is serving as escrow holder only.
(vi) The Escrow Agent (and any successor escrow agent) at any time may be discharged from its duties and obligations hereunder by the delivery to matters arising out it of notice of termination signed by the gross negligence Company and Fulcrum or willful misconduct of Escrow Agentat any time may resign by giving written notice to such effect to the Company and Fulcrum. Seller and Purchaser shall at all times indemnify Upon any such termination or resignation, the Escrow Agent against all actionsshall deliver the Escrowed Shares to any successor escrow agent jointly designated by the other parties hereto in writing, proceedingsor to any court of competent jurisdiction if no such successor escrow agent is agreed upon, claims or demands arising out of this transaction, except with respect to matters arising out of whereupon the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose discharged of and from any and all further obligations arising in connection with this Agreement. The termination or resignation of the Earn▇▇▇ ▇▇▇ey Deposit Escrow Agent shall take effect on the earlier of (A) the appointment of a successor (including a court of competent jurisdiction) or (B) the twentieth day 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 Shares 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.
(vii) The Escrow Agent shall have no responsibility for the contents of any writing of any third party contemplated herein as provided for in said paragraph a means to resolve disputes and may rely without incurring any liability. liability upon the contents thereof.
(viii) In the event of a any dispute among or between Seller and Purchaser which cannot be resolvedthe other parties hereto resulting in adverse claims or demands being made in connection with the Escrowed Shares or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent shall retain the Escrowed Shares until the Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into received (A) a final and non-appealable order of a court of competent jurisdiction pending resolution directing delivery of the deposition Escrowed Shares or (B) a written agreement executed by the other parties hereto directing delivery of said funds and to interplead Seller and Purchaser the Escrowed Shares, in respect thereof, and upon depositing said funds, which event the Escrow Agent shall bear no release and distribute the Escrowed Shares in accordance with such order or agreement. The Escrow Agent shall act on such court order without further responsibilityquestion.
(ix) The parties hereto irrevocably (A) submit to the jurisdiction of any state or federal court sitting in New York County, New York in any action or proceeding arising out of, or relating to, this Agreement, (B) agree that all claims with respect to such action or proceeding shall be heard and determined in such state or federal court, and (C) 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 thereof.
(x) No publicly distributed material or other matter in any language which mentions the Escrow Agent's name or the rights, powers, or duties of the Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless the Escrow Agent shall first have given its specific written consent thereto.
(xi) Distribution of the Escrowed Shares pursuant to this Agreement by the Escrow Agent shall operate to divest all right, title, interest, claim and demand, either at law or in equity, of any party to this Agreement in and to the Escrowed Shares, and shall be a perpetual bar both at law and in equity as against the Escrow Agent, the Company and Fulcrum. The Escrow Agent's responsibilities and liabilities hereunder will terminate upon transfer by Escrow Agent of the Escrowed Shares under this Agreement.
Appears in 1 contract
Escrow Agent. The Escrow Agent referred to above shall be RichTo induce ▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Colonial Investment Group. and ▇▇▇▇▇ PC to serve as the escrow agent and to act in such capacity hereunder, it is agreed by the parties hereto that:
(a) The Escrow Agent escrow agent shall not be charged under any duty to give the property held by it hereunder (the "Escrowed Property") any greater degree of care than it gives its own similar property.
(b) This Section 8 of this Agreement expressly sets forth all the duties of the escrow agent with respect to any knowledge until such facts are communicated to and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent in writingescrow agent. The Escrow Agent provisions of any agreement shall not bind the escrow agent among the other parties hereto except this Section 8 of this Agreement.
(c) The escrow agent shall not be required to institute liable, except for its own gross negligence or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such actionwillful misconduct and, except with respect to matters arising out of the claims based upon such gross negligence or willful misconduct of Escrow Agent. Seller that are successfully asserted against the escrow agent, the other parties hereto shall jointly and Purchaser shall at severally indemnify and hold harmless the escrow agent from and against any and all times indemnify the Escrow Agent against all losses, liabilities, claims, actions, proceedingsdamages and expenses, claims or demands including, without limitation, reasonable attorneys' fees and disbursements, arising out of or in connection with this transactionAgreement.
(d) The escrow agent shall be entitled to rely upon any order, except 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 to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The escrow agent may act pursuant to the advice of counsel with respect to matters arising out any matter relating to this 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 the Escrowed Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The other parties shall, on a joint and several basis, pay or reimburse the escrow agent upon request for any and all expenses, if any, incurred by the escrow agent in connection with this Agreement and transfer taxes or other taxes relating to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the escrow agent from any amounts that it is obligated to pay in the way of such expenses and taxes. This subparagraph and subparagraph (c) shall survive notwithstanding any termination of this Agreement or the resignation of the gross negligence escrow agent.
(g) The escrow agent makes no representation as to the validity, value, genuineness or willful misconduct the collectability of Escrow Agent. Upon failure any security or other document or instrument held by or delivered to it.
(h) The 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 Purchaser to comply with competent jurisdiction, whereupon the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent escrow agent shall be empowered to dispose discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liabilityescrow 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 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.
(i) In the event of a dispute any disagreement between Seller and Purchaser which cannot 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 resolved, Escrow Agent entitled to retain the Escrowed Property until the escrow agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into received (i) a final non-appealable order of a court of competent jurisdiction pending resolution directing delivery of the deposition 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 funds opinion is final and non-appealable.
(j) Notwithstanding anything to interplead Seller the contrary contained herein, the escrow agent's duties and obligations hereunder shall terminate upon the release and distribution of the Escrowed Property in accordance with the terms of this Agreement.
(k) Each of the Company and the Purchaser understands and agrees that, notwithstanding its duties as escrow agent hereunder, the escrow agent is the attorney for the Company, and, accordingly, neither any services as escrow agent hereunder nor any provisions hereof, either express or implied, shall restrict or inhibit the escrow agent in respect thereofany way from representing the Company or its affiliates in any action, and upon depositing said fundsdispute, Escrow Agent shall bear no further responsibilitycontroversy, arbitration, suit or negotiation arising under this Agreement or under any other agreement or in any manner or context whatsoever, whether or not directly or indirectly involving the Company or its affiliates.
Appears in 1 contract
Escrow Agent. The parties further agree that:
3.3.1 The Escrow Agent referred is executing this Agreement to above acknowledge the Escrow Agent’s responsibilities hereunder, which may be modified only by a written amendment signed by all of the parties hereto. Any amendment to this Agreement that is not signed by the Escrow Agent shall be Rich▇▇▇ ▇effective as to the parties thereto, but shall not be binding on the Escrow Agent. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Group. Escrow Agent shall accept the Deposit with the understanding of Seller and Purchaser that Escrow Agent is not a party to this Agreement except to the extent of its specific responsibilities hereunder, and does not assume or have any liability for the performance or non-performance of Purchaser or Seller hereunder to either of them.
3.3.2 The Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to the Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document;
3.3.3 The Escrow Agent shall not be charged with bound in any knowledge until such facts are communicated to way by any other agreement or understanding between Seller and Purchaser, whether or not the Escrow Agent has knowledge thereof or consents thereto unless such consent by Escrow Agent is given in writing. .
3.3.4 The Escrow Agent’s sole duties and responsibilities shall be to hold and disburse the Deposit and Interest accrued thereon in accordance with this Agreement.
3.3.5 The Escrow Agent shall not be required liable for any action taken or omitted by the Escrow Agent in good faith and believed by the Escrow Agent to institute be authorized or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such actionwithin its rights or powers conferred upon it by this Agreement, except with respect to matters arising out of for damage caused by the gross negligence negligence, bad faith or willful misconduct of the Escrow Agent.
3.3.6 Upon the disbursement of the Deposit and Interest in accordance with this Agreement, the Escrow Agent shall be relieved and released from any liability under this Agreement.
3.3.7 The Escrow Agent may resign at any time upon at least ten (10) days prior written notice to Seller and Purchaser. If, prior to the effective date of such resignation, Seller and Purchaser shall at all times indemnify each have approved, in writing, a successor escrow agent, then upon the resignation of the Escrow Agent, the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect shall deliver the Deposit and Interest to matters arising out such successor escrow agent. From and after such resignation and the delivery of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser Deposit and Interest accrued thereon to comply with such successor escrow agent, the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose fully relieved of all of its duties, responsibilities and obligations under this Agreement, all of which duties, responsibilities and obligations shall be performed by the Earn▇▇▇ ▇▇▇ey Deposit as provided appointed successor escrow agent. If for in said paragraph without incurring any liability. In the event of a dispute between reason, Seller and Purchaser which canshall not approve a successor escrow agent within such period, the Escrow Agent may bring any appropriate action or proceeding for leave to deposit the Deposit and Interest with a court of competent jurisdiction, pending the approval of a successor escrow agent, and upon such deposit the Escrow Agent shall be resolvedfully relieved of all of its duties, responsibilities and obligations under this Agreement.
3.3.8 Seller and Purchaser hereby agree to, jointly and severally, indemnify, defend and hold the Escrow Agent harmless from and against any liabilities, damages, losses, costs or expenses incurred by, or claims or charges made against, the Escrow Agent (including reasonable attorneys’ fees, expenses and court costs) by reason of the Escrow Agent’s acting or failing to act in connection with any of the matters contemplated by this Agreement as escrow agent or in carrying out the terms of this Agreement as escrow agent, except as a result of the Escrow Agent’s gross negligence, bad faith or willful misconduct.
3.3.9 Subject to the provisions of Section 3.2.5, in the event that a dispute arises in connection with this Agreement, or as to the rights of either Seller or Purchaser in and to, or the disposition of, the Deposit and Interest, the Escrow Agent shall have the option right to (w) hold and retain the Deposit and Interest until such dispute is settled or finally determined by litigation, arbitration or otherwise, or (x) deposit the Earn▇▇▇ ▇▇▇ey Deposit into a and Interest with an appropriate court of competent jurisdiction pending resolution law, following which the Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement, or (y) institute an action in interpleader or other similar action permitted by stakeholders in the State of New York, or (z) interplead any of the deposition parties hereto in any action or proceeding which may be brought to determine the rights of said funds and to interplead Seller and Purchaser in respect thereof, to all or any part of the Deposit and upon depositing said funds, Interest.
3.3.10 The Escrow Agent shall bear no further responsibilitynot have any liability or obligation for loss of all or any portion of the Deposit or Interest by reason of the insolvency or other action or omission of the institution of depository with whom the applicable escrow account is maintained.
3.3.11 Escrow Agent shall not be liable or responsible for any failure, refusal or inability of the depository into which the Deposit is deposited to pay the Deposit at Escrow Agent’s direction, or for levies by taxing authorities based upon the taxpayer identification number used to establish this interest bearing account. Escrow Agent shall not be responsible for any interest except for such interest as is actually received (which interest received shall be added to and considered part of the Deposit), nor shall Escrow Agent be responsible for the loss of any interest arising from the closing of any account or the sale of any certificate of deposit or other instrument prior to maturity.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Dime Community Bancshares Inc)
Escrow Agent. 5.1 The Escrow Agent referred may act in reliance upon any writing or instrument or signature which it, in good faith, believes to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Groupgenuine; may assume the validity and accuracy of any statements or assertions contained in such writing or instrument; and may assume that any person purporting to give any writing, notice, advice or instruction in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent shall not be charged with liable in any knowledge until such facts are communicated manner for the sufficiency or correctness as to form, manner of execution, or validity of any written instructions delivered to it; nor as to the identity, authority, or rights of any person executing the same. The duties of the Escrow Agent shall be limited to the safekeeping of the Offering Escrow Account and to disbursements of same in writingaccordance with the provisions hereof. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, and no implied duties or obligations of the Escrow Agent shall be implied by virtue of this Agreement.
5.2 The Escrow Agent may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The Escrow Agent shall not be required to institute liable for any mistakes of fact or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his error of judgment, be subjected in connection with such action, except with respect to matters arising out or for any acts or omissions of the gross negligence or any kind unless caused by its willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, negligence.
5.3 The Escrow Agent shall be empowered indemnified and held harmless by the Company from and against any reasonable expenses, including counsel fees and disbursements, or loss suffered by the Escrow Agent in connection with any third party action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way directly or indirectly arises out of or relates to dispose this Agreement, the services of the Earn▇▇▇ ▇▇▇ey Deposit as provided for 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 said paragraph without incurring 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 liabilityparty from any liability which such party may have to the Escrow Agent hereunder. In the event of the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Offering Escrow Account or it may deposit the Offering Escrow Account with the clerk of any appropriate court or it may retain the Offering Escrow Account pending receipt of a dispute between Seller final, non-appealable order of a court having jurisdiction over all of the parties hereto directing to whom and Purchaser which cannot under what circumstances the Escrow Account is to be resolveddisbursed and delivered.
5.4 During the term hereof, the Escrow Agent shall hold the Offering Proceeds in a non-interest bearing account maintained by the Escrow Agent for the benefit of the Company collateralized by the direct obligations of the U.S. Government or agencies thereof.
5.5 From time to time on and after the date hereof, the Company and the Underwriter shall each deliver or cause to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent shall reasonably request (it being understood that the Escrow Agent shall have no obligation to make such request) to carry out more effectively the option provisions and purposes of this Agreement, to deposit evidence compliance herewith or to assure itself that it is protected in acting hereunder.
5.6 The Escrow Agent may resign at any time and be discharged from its duties as Escrow Agent hereunder by its giving the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of other parties hereto at least thirty (30) days prior written notice thereof. As soon as practicable after its resignation, the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear turn over to a successor escrow agent appointed by the other parties hereto, jointly, all monies and property held hereunder upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no further responsibilitynew escrow agent is so appointed within the sixty (60) day period following the giving of such notice of resignation, the Escrow Agent may deposit the Offering Escrow Account with any court it deems appropriate.
5.7 The Escrow Agent shall resign and be discharged from its duties as Escrow Agent hereunder if so requested in writing at anytime by the Company and the Underwriter, jointly, provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided in paragraph 5.6.
5.8 Notwithstanding anything herein to the contrary, the Escrow Agent shall not be relieved from liability hereunder for its own gross negligence or its own willful misconduct.
Appears in 1 contract
Escrow Agent. 3.1. The Escrow Agent’s duties hereunder may be altered, amended, modified or revoked only by a writing signed by the Company, the Principal Stockholder, the Purchaser Representative and the Escrow Agent.
3.2. The Escrow Agent referred to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Groupobligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be charged with personally liable for any knowledge until such facts are communicated to act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting in writinggood faith and in the absence of gross negligence, fraud or willful misconduct, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s attorneys-at-law shall be conclusive evidence of such good faith, in the absence of gross negligence, fraud or willful misconduct.
3.3. The Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation, excepting only orders or process of courts of law and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, the Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
3.4. The Escrow Agent shall not be required to institute or maintain liable in any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out on account of the identity, authorization or rights of the parties executing or delivering or purporting to execute or deliver any documents or papers deposited or called for thereunder in the absence of gross negligence negligence, fraud or willful misconduct of Escrow Agentmisconduct.
3.5. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, The Escrow Agent shall be empowered entitled to dispose employ such legal counsel and other experts as the Escrow Agent may deem necessary to properly advise the Escrow Agent in connection with the Escrow Agent’s duties hereunder, may rely upon the advice of such counsel, and may pay such counsel reasonable compensation therefor which shall be paid by the Escrow Agent. The Escrow Agent has acted as legal counsel for the Company. The Company and the Purchasers consent to the Escrow Agent in such capacity as legal counsel for the Company and waive any claim that such representation represents a conflict of interest on the part of the Earn▇▇▇ ▇▇▇ey Deposit Escrow Agent. The Company and the Purchasers understand that the Escrow Agent is relying explicitly on the foregoing provision in entering into this Escrow Agreement.
3.6. The Escrow Agent’s responsibilities as provided for in said paragraph without incurring any liabilityescrow agent hereunder shall terminate if the Escrow Agent shall resign by giving written notice to the Company and the Purchasers. In the event of any such resignation, the Purchasers and the Company shall appoint a dispute between Seller successor Escrow Agent and Purchaser which cannot be resolved, the Escrow Agent shall deliver to such successor Escrow Agent any escrow funds and other documents held by the Escrow Agent.
3.7. If the Escrow Agent reasonably requires other or further instruments in connection with this Escrow Agreement or obligations in respect hereto, the necessary parties hereto shall use its best efforts to join in furnishing such instruments.
3.8. It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the documents or the Escrow Shares held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed in the Escrow Agent’s sole discretion (1) to retain in the Escrow Agent’s possession without liability to anyone all or any part of said documents or the Escrow Shares until such disputes shall have been settled either by mutual written agreement of the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into parties concerned by a final order, decree or judgment or a court of competent jurisdiction pending resolution of after the deposition of said funds time for appeal has expired and to interplead Seller and Purchaser in respect thereofno appeal has been perfected, and upon depositing said funds, but the Escrow Agent shall bear be under no further responsibilityduty whatsoever to institute or defend any such proceedings or (2) to deliver the Escrow Shares and any other property and documents held by the Escrow Agent hereunder to a state or Federal court having competent subject matter jurisdiction and located in the City of New York, Borough of Manhattan, in accordance with the applicable procedure therefor.
3.9. The Company agrees to indemnify and hold harmless the Escrow Agent and its partners, employees, agents and representatives from any and all claims, liabilities, costs or expenses in any way arising from or relating to the duties or performance of the Escrow Agent hereunder or the transactions contemplated hereby other than any such claim, liability, cost or expense to the extent the same shall have been determined by final, unappealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, fraud or willful misconduct of the Escrow Agent.
Appears in 1 contract
Sources: Securities Escrow Agreement (ChinaNet Online Holdings, Inc.)
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from Buyer and Seller, the Escrow Agent shall not transfer or otherwise dispose of in any manner all or any portion of the Escrow Fund, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by the Escrow Provisions, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Escrow Provisions.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent referred may assume that any person purporting to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Group. give any notice in accordance with the provisions of this Agreement or the Purchase Agreement has been duly authorized to do so.
(d) The Escrow Agent shall not be charged liable for any error of judgment, or any action taken, suffered or omitted to be taken, hereunder except in the case of its negligence, bad faith or willful misconduct. The Escrow Agent may consult with counsel of its own choice and shall have full and complete authorization and protection for any knowledge until action taken or suffered by it hereunder in good faith and in accordance with the opinion of such facts are communicated counsel.
(e) The Escrow Agent shall have no duty as to the collection of the Escrow Fund, nor as to the preservation of any rights pertaining thereto, beyond the safe custody of the Escrow Fund actually in its possession.
(f) The Escrow Agent shall invest and reinvest the Escrow Fund in such Permitted Investments as the Buyer and Seller shall from time to time direct by written notice to the Escrow Agent. A “Permitted Investment” is an investment in (i) direct obligations of the United States or any agency thereof, or obligations guaranteed fully as to payment of interest, principal and premium (if any) by the United States or any agency thereof, that, in each case, mature within one year from the date of its acquisition by the Escrow Fund, (ii) demand or time deposits with or certificates of deposit or bankers’ acceptances issued by any office located in the United States of any bank or trust company which is organized under the laws of the United States or any state thereof, is a member of the Federal Reserve System and has capital, surplus and undivided profits aggregating at least $5,000,000,000, that, in each case, matures within one year from the date of its acquisition by the Escrow Fund, (iii) repurchase agreements with respect to securities described in clause (i) above entered into with an office of a bank or trust company meeting the criteria specified in clause (ii) above, (iv) common trust funds, mutual funds, or money market funds (including any investment products maintained by the Escrow Agent) that invest solely in one or more investments described in clauses (i) through (iii) above; provided that the net asset value of any such fund as of any date is publicly available and that the Escrow Fund’s investment in such fund may be redeemed by the Escrow Agent in writingat any time at 100% of the pro rata portion of such net asset value. The Escrow Agent shall not be required have no responsibility for the review of proposed investments or otherwise to institute or maintain confirm whether any litigation unless indemnified to his satisfaction proposed investments meet the criteria for his counsel fees, costs, disbursements Permitted Investments prescribed in the preceding sentence and all other expenses may rely conclusively upon a written investment instruction of Buyer and liabilities to which he may, the Seller as authorized in his judgment, be subjected in connection accordance with such actioncriteria. If no such instructions are provided, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify then the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out shall invest the Escrow Fund in the Escrow Agent’s Money Market Fund. Any income earned on the Escrow Amount while it is part of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent Fund shall be empowered added to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibilityFund.
Appears in 1 contract
Escrow Agent. The parties further agree that:
3.3.1 The Escrow Agent referred is executing this Agreement to above acknowledge the Escrow Agent’s responsibilities hereunder, which may be modified only by a written amendment signed by all of the parties. Any amendment to this Agreement that is not signed by the Escrow Agent shall be Rich▇▇▇ ▇effective as to the parties thereto, but shall not be binding on the Escrow Agent. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Group. Escrow Agent shall accept the Deposit with the understanding of the parties that Escrow Agent is not a party to this Agreement except to the extent of its specific responsibilities hereunder, and does not assume or have any liability for the performance or non-performance of Purchaser or Seller hereunder to either of them.
3.3.2 The Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to the Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
3.3.3 The Escrow Agent shall not be charged with bound in any knowledge until such facts are communicated to way by any other agreement or understanding between the parties hereto, whether or not the Escrow Agent has knowledge thereof or consents thereto unless such consent is given in writing. .
3.3.4 The Escrow Agent’s sole duties and responsibilities shall be to hold and disburse the Deposit and Interest accrued thereon in accordance with this Agreement.
3.3.5 The Escrow Agent shall not be required liable for any action taken or omitted by the Escrow Agent in good faith and believed by the Escrow Agent to institute be authorized or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such actionwithin its rights or powers conferred upon it by this Agreement, except with respect to matters arising out of for damage caused by the gross negligence negligence, bad faith or willful misconduct of the Escrow Agent. Seller and Purchaser shall at all times indemnify .
3.3.6 Upon the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out disbursement of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply Deposit and Interest accrued thereon in accordance with this Agreement, the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered relieved and released from any liability under this Agreement.
3.3.7 The Escrow Agent may resign at any time upon at least ten (10) days prior written notice to dispose the parties hereto. If, prior to the effective date of such resignation, the parties hereto shall all have approved, in writing, a successor escrow agent, then upon the resignation of the Earn▇▇▇ ▇▇▇ey Escrow Agent, the Escrow Agent shall deliver the Deposit as provided and Interest accrued thereon to such successor escrow agent. From and after such resignation and the delivery of the Deposit and Interest accrued thereon to such successor escrow agent, the Escrow Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement, all of which duties, responsibilities and obligations shall be performed by the appointed successor escrow agent. If for in said paragraph without incurring any liability. In reason the event parties hereto shall not approve a successor escrow agent within such period, the Escrow Agent may bring any appropriate action or proceeding for leave to deposit the Deposit and Interest accrued thereon with a court of competent jurisdiction, pending the approval of a dispute between successor escrow agent, and upon such deposit the Escrow Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement.
3.3.8 Seller and Purchaser which cannot be resolvedhereby agree to, jointly and severally, indemnify, defend and hold the Escrow Agent harmless from and against any liabilities, damages, losses, costs or expenses incurred by, or claims or charges made against, the Escrow Agent (including attorneys’ fees, expenses and court costs) by reason of the Escrow Agent’s acting or failing to act in connection with any of the matters contemplated by this Agreement as escrow agent or in carrying out the terms of this Agreement as escrow agent, except as a result of the Escrow Agent’s gross negligence, bad faith or willful misconduct.
3.3.9 Subject to the provisions of Section 3.2.5, in the event that a dispute shall arise in connection with this Agreement, or as to the rights of any of the parties in and to, or the disposition of, the Deposit and Interest, the Escrow Agent shall have the option right to (w) hold and retain the Deposit and Interest until such dispute is settled or finally determined by litigation, arbitration or otherwise, or (x) deposit the Earn▇▇▇ ▇▇▇ey Deposit into a and Interest in an appropriate court of competent jurisdiction pending resolution of law, following which the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibilitythereby and thereafter be relieved and released from any liability or obligation under this Agreement, or (y) institute an action in interpleader or other similar action permitted by stakeholders in the State of New York, or (z) interplead any of the parties in any action or proceeding which may be brought to determine the rights of the parties to all or any part of the Deposit.
3.3.10 The Escrow Agent shall not have any liability or obligation for the failure, insolvency, or inability of the institution of depository with whom the escrow account is maintained to pay the Deposit or for any failure, refusal or inability of the institution of depository with whom the escrow account is maintained to pay the Deposit at the Escrow Agent’s direction, or for levies by taxing authorities based upon the taxpayer identification number used to establish the interest bearing escrow account.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Boston Properties LTD Partnership)
Escrow Agent. (a) The duties of the Escrow Agent referred to above hereunder shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Groupentirely administrative and not discretionary. The Escrow Agent shall not be charged with any knowledge until such facts are communicated obligated to the Escrow Agent act only as specifically set forth in writingthis Agreement and in written instructions received by it pursuant hereto. The Escrow Agent is hereby authorized to comply with any orders, judgments or decrees of any court and shall not be required liable as a result of its compliance with the same.
(b) As to institute or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected legal questions arising in connection with the administration of this Agreement, the Escrow Agent may rely absolutely upon the opinions given to it by its counsel and shall be free of liability for acting in reliance on such actionopinions.
(c) The Escrow Agent may rely absolutely upon the genuineness and authorization of the signature and purported signature of any party upon any instruction, except with respect notice, release, receipt or other document delivered to matters it pursuant to this Agreement.
(d) The Escrow Agent may, as a condition to the disbursement of monies as provided herein, require from the payee or recipient a receipt therefor and, upon final payment, a release of the Escrow Agent from any liability arising out of its execution or performance of this Agreement, such release to be in a form satisfactory to the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, .
(e) The Escrow Agent shall be empowered entitled to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for refrain from taking any action contemplated by this Agreement in said paragraph without incurring any liability. In the event it becomes aware of any dispute between Investor and the Company (other than a dispute between Seller and Purchaser which cannot be resolvedsubject to the provisions of Section 2.04 of this Agreement) as to any material facts or as to the happening of any event precedent to such action.
(f) The Company agrees to pay to the Escrow Agent, Escrow Agent shall have the option as compensation for its services hereunder, a fee equal to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser in respect thereof$2,000, and upon depositing said funds, Escrow Agent shall bear no further responsibilityplus reasonable out-of-pocket expenses.
Appears in 1 contract
Escrow Agent. The Escrow Agent referred to above shall be RichTo induce Mintz Levin C▇▇▇ ▇. e▇▇▇▇ G▇▇▇▇▇▇ ▇▇▇ Colonial Investment Group. P▇▇▇▇, ▇.C. t▇ ▇▇▇ve as the escrow agent and to act in such capacity hereunder, it is agreed by the parties hereto that:
(a) The Escrow Agent escrow agent shall not be charged under any duty to give the property held by it hereunder (the "Escrowed Property") any greater degree of care than it gives its own similar property.
(b) This Section 8 of this Agreement expressly sets forth all the duties of the escrow agent with respect to any knowledge until such facts are communicated to and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent in writingescrow agent. The Escrow Agent escrow agent shall not be required to institute bound by the provisions of any agreement among the other parties hereto except this Section 8 of this Agreement.
(c) The escrow agent shall not be liable, except for its own gross negligence or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such actionwillful misconduct and, except with respect to matters arising out of the claims based upon such gross negligence or willful misconduct of Escrow Agent. Seller that are successfully asserted against the escrow agent, the other parties hereto shall jointly and Purchaser shall at severally indemnify and hold harmless the escrow agent from and against any and all times indemnify the Escrow Agent against all losses, liabilities, claims, actions, proceedingsdamages and expenses, claims or demands including, without limitation, reasonable attorneys' fees and disbursements, arising out of or in connection with this transactionAgreement.
(d) The escrow agent shall be entitled to rely upon any order, except 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 to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
(e) The escrow agent may act pursuant to the advice of counsel with respect to matters arising out any matter relating to this 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 the Escrowed Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The other parties shall, on a joint and several basis, pay or reimburse the escrow agent upon request for any and all expenses, if any, incurred by the escrow agent in connection with this Agreement and transfer taxes or other taxes relating to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the escrow agent from any amounts that it is obligated to pay in the way of such expenses and taxes. This subparagraph and subparagraph (c) shall survive notwithstanding any termination of this Agreement or the resignation of the gross negligence escrow agent.
(g) The escrow agent makes no representation as to the validity, value, genuineness or willful misconduct the collectability of Escrow Agent. Upon failure any security or other document or instrument held by or delivered to it.
(h) The 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 Purchaser to comply with competent jurisdiction, whereupon the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent escrow agent shall be empowered to dispose discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liabilityescrow 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 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.
(i) In the event of a dispute any disagreement between Seller and Purchaser which cannot 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 resolved, Escrow Agent entitled to retain the Escrowed Property until the escrow agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into received (i) a final non-appealable order of a court of competent jurisdiction pending resolution directing delivery of the deposition 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 funds opinion is final and non-appealable.
(j) Notwithstanding anything to interplead Seller the contrary contained herein, the escrow agent's duties and obligations hereunder shall terminate upon the release and distribution of the Escrowed Property in accordance with the terms of this Agreement.
(k) Each of the Company and the Purchaser understands and agrees that, notwithstanding its duties as escrow agent hereunder, the escrow agent is the attorney for the Company, and, accordingly, neither any services as escrow agent hereunder nor any provisions hereof, either express or implied, shall restrict or inhibit the escrow agent in any way from representing the Company or its affiliates in any action, dispute, controversy, arbitration, suit or negotiation arising under this Agreement or under any other agreement or in any manner or context whatsoever, whether or not directly or indirectly involving the Company or its affiliates. Notwithstanding anything to the contrary contained herein, if at any time a law firm representing either Company or Purchasers serves or is serving as escrow agent, then with respect thereofto such law firm's capacity as escrow agent, and upon depositing said fundssuch counsel shall not for these purposes serve as the agent for either of the parties, Escrow Agent but shall bear no further responsibilitybe a fiduciary of both parties.
Appears in 1 contract
Escrow Agent. The Escrow Agent referred to above shall have only those duties as are specifically and expressly provided herein, which shall be Rich▇▇▇ ▇deemed purely ministerial in nature, and no other duties, including but not limited to any fiduciary duty, shall be implied. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment GroupEscrow Agent has no knowledge of, nor any obligation to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. The Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. Escrow Agent shall not be charged with liable for any knowledge until such facts are communicated action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent in writing. The Escrow Agent shall not be required to institute or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out of the Agent’s gross negligence or willful misconduct was the cause of Escrow Agentany direct loss to either Party. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actionsmay execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the event Escrow Agent shall be uncertain, proceedingsor believes there is some ambiguity, as to its duties or rights hereunder or receives instructions, claims or demands arising out from any Party hereto which in Escrow Agent’s judgment conflict with the provisions of this transactionAgreement, except with respect to matters arising out of or if Escrow Agent receives conflicting instructions from the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereofParties, Escrow Agent shall be empowered to dispose entitled either to: (a) refrain from taking any action until it shall be given (i) a joint written direction executed by Authorized Representatives of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of Parties which eliminates such conflict or (ii) a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into court order issued by a court of competent jurisdiction pending resolution of (it being understood that the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear be entitled conclusively to rely and act upon any such court order and shall have no further responsibilityobligation to determine whether any such court order is final); or (b) file an action in interpleader. Escrow Agent shall have no duty to solicit any payments which may be due it, including, without limitation, the Escrow Shares nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Sources: Escrow Agreement (MTBC, Inc.)
Escrow Agent. The (a) Except as expressly authorized by this Agreement or by joint written instructions from Green Mountain and Buyer, the Escrow Agent referred shall not sell, transfer or otherwise dispose of in any manner all or any portion of the Escrow Account, except pursuant to above an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Groupdetermined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. The Escrow Agent shall not be charged a fiduciary for any party. In no event shall the Escrow Agent be liable, directly or indirectly, for any (i) damages or expenses arising out of the services provided hereunder, other than damages which result from the Escrow Agent's gross negligence or willful misconduct, or (ii) special or consequential damages, even if the Escrow Agent has been advised of the possibility of such damages.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any person or entity purporting to give any notice in accordance with any knowledge until such facts are communicated the provisions of this Agreement has been duly authorized to do so. Concurrent with the execution of this Agreement, Buyer and Green Mountain, respectively, shall deliver to the Escrow Agent an authorized signers form in writing. the form of Exhibit B-1 and Exhibit B-2 to this Agreement.
(d) The Escrow Agent shall not be required liable for any error of judgment, or any action taken, suffered or omitted to institute be taken, hereunder except in the case of its gross negligence, bad faith or maintain willful misconduct.
(e) The Escrow Agent shall have no duty as to the collection or protection of the Escrow Account or income thereon, nor as to the preservation of any litigation unless indemnified rights pertaining thereto, beyond the safe custody of any such funds and any payments thereunder actually in its possession.
(f) As compensation for its services to his satisfaction be rendered under this Agreement, the Escrow Agent shall receive a fee in the amount described on the attached Exhibit A ("Escrow Fee") and shall be reimbursed, as described on Exhibit A, upon request for his counsel fees, costsany expenses, disbursements and all advances reasonably incurred by it in carrying out its duties under this Agreement. Buyer, on one hand, and Green Mountain and Phoenix (pro rata), on the other expenses and liabilities to which he mayhand, in his judgment, shall each be subjected in connection with such action, except with respect to matters arising out responsible for 50% of the gross negligence or willful misconduct of Escrow Agent. Seller Fee and Purchaser shall at all times such additional expenses.
(g) Buyer and Green Mountain shall, jointly and severally, reimburse and indemnify the Escrow Agent against for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorney's fees, incurred without gross negligence, bad faith or willful misconduct on the part of the Escrow Agent arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement. The indemnification provided by this Section 9(g) shall survive the resignation or removal of the Escrow Agent and the termination of this Agreement.
(h) The Escrow Agent may at any time resign by giving 20 business days prior written notice of resignation to Buyer and Green Mountain. Buyer and Green Mountain may at any time jointly remove the Escrow Agent by giving 10 business days written notice signed by Buyer and Green Mountain to the Escrow Agent. If the Escrow Agent shall resign or be removed, a successor Escrow Agent, which shall be a bank or trust company having assets in excess of $500 million, shall be appointed by written instrument executed by Buyer and Green Mountain and delivered to the Escrow Agent and to such successor Escrow Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent shall become effective and such successor Escrow Agent, without any further act, deed or conveyance, shall become vested with all actionsright, proceedingstitle and interest to all cash and property held hereunder of such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of Buyer, Green Mountain or the successor Escrow Agent, deliver to such successor Escrow Agent all the right, title and interest hereunder of such predecessor Escrow Agent in and to the Escrow Account and all other rights hereunder of such predecessor Escrow Agent. If no successor Escrow Agent shall have been appointed within 20 business days of a notice of resignation by the Escrow Agent, the Escrow Agent's sole responsibility shall thereafter be to hold the Escrow Account until the earliest of (x) its receipt of designation of a successor Escrow Agent, (y) its receipt of joint written instructions by Buyer and Green Mountain, and (z) termination of this Agreement in accordance with its terms.
(i) Notwithstanding anything herein to the contrary, if any controversy arises between the parties to this Agreement, or with any other party, concerning the subject matter of this Agreement, its terms or conditions, the Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Escrow Agent may hold the Escrow Account in escrow and may wait for settlement of any such controversy by agreement by the parties as provided by Section 4. In such event, the Escrow Agent will not be liable to any person or entity for interest or damage, except for its gross negligence, bad faith or willful misconduct. In addition, in the event of any such controversy resulting in adverse claims or demands arising out of this transactionbeing made upon the Escrow Account, except with respect to matters arising out of or in the gross negligence or willful misconduct of event that the Escrow Agent. Upon failure , in good faith, is in reasonable doubt as to what action it should take hereunder, the Escrow Agent may, at its option, file a suit as interpleader in a court of Purchaser appropriate jurisdiction, or refuse to comply with the requirements any claims or demands on it, or refuse to take any other action hereunder, so long as set forth herein and pursuant to Paragraph 13 hereof, such dispute shall continue or such doubt shall exist. The Escrow Agent shall be empowered entitled to dispose continue so to refrain from acting until (A) the rights of all parties have been fully and finally adjudicated by a court of appropriate jurisdiction or by binding arbitration or (B) all differences and such doubt shall have been resolved by agreement among all of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In interested persons, and the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court been notified of competent jurisdiction pending resolution such agreement in writing signed by all such persons. The rights of the deposition Escrow Agent under this subsection (i) are cumulative of said funds and all other rights which it may have by law or otherwise.
(j) The following provisions shall control with respect to interplead Seller and Purchaser in respect thereofthe rights, duties, liabilities, privileges, and upon depositing said fundsimmunities of the Escrow Agent:
(a) The Escrow Agent is not a party to, is not bound by, and has no duty to inquire into any agreement other than this Escrow Agreement. All references in this Escrow Agreement to other agreements, including the Repurchase Agreement and Indemnification Agreement, are for the convenience of the parties hereto other than the Escrow Agent, and the Escrow Agent shall bear have no duties or obligations with respect thereto. The Escrow Agent shall have no implied duties beyond the express duties set forth herein.
(b) It is the intention of the parties to this Escrow Agreement that the Escrow Agent shall never be required to use or advance its own funds or otherwise incur personal financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder.
(k) Any corporation or 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 all or substantially all of its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which the Escrow Agent is a party, shall be and become the successor Escrow Agent under this Escrow Agreement and shall have and succeed to the rights, powers, duties, immunities and privileges as its predecessor, without the execution or filing of any instrument or paper or the performance any further responsibilityact.
Appears in 1 contract
Escrow Agent. The Escrow Agent referred shall have only those duties as are specifically and expressly provided herein and no other duties, including but not limited to above any fiduciary duty, shall be Rich▇▇▇ ▇implied. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment GroupThe Escrow Agent has no knowledge of, nor any obligation to comply with, the terms and conditions of any other agreement between the Parties, nor shall the Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of the Escrow Agent. The Escrow Agent may conclusively rely in good faith upon any written notice, document, instruction or request delivered by a Party reasonably believed by it to be genuine and correct and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind, and the Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall not be charged liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that the Escrow Agent’s gross negligence or willful misconduct was the cause of any direct loss to either Party, as determined by a court of competent jurisdiction in a final and non-appealable judgment. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the event the Escrow Agent shall be uncertain, or reasonably believes there is some ambiguity, as to its duties or rights hereunder or receives instructions, claims or demands from any Party hereto which in the Escrow Agent’s judgment create such uncertainty or ambiguity, the Escrow Agent shall be entitled either to: (a) refrain from taking any action until it shall be given (i) a joint written direction executed by Authorized Representatives of the Parties (or only the Trustee after its delivery of a Notice of Exclusive Control to the Escrow Agent), which eliminates such conflict or (ii) by a court order issued by a court of competent jurisdiction (it being understood that the Escrow Agent shall be entitled conclusively to rely and act in good faith upon any such court order and shall have no obligation to determine whether any such court order is final); or (b) file an action in interpleader. The Escrow Agent shall have no duty to solicit any payments which may be due to it or to the Escrowed Funds, including, without limitation, the Initial Deposit and the Escrow Agent shall not have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any knowledge until kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such facts are communicated loss or damage and regardless of the form of action. The Escrow Agent shall have no liability to the Issuer for complying with a Notice of Exclusive Control or complying with written instructions or other written directives concerning the Escrow Account originated by the Trustee and delivered to the Escrow Agent in writing. The Escrow Agent shall not be required to institute or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection accordance with such action, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibilityAgreement.
Appears in 1 contract
Sources: Escrow Agreement (Apergy Corp)
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by written instructions from the Purchaser, the Seller and the Seller's Lender, the Escrow Agent shall not deliver any Escrowed Item, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent referred may assume that any Person purporting to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Group. give any notice in accordance with the provisions of this Agreement has been duly authorized to do so.
(d) The Escrow Agent shall not be charged liable for any error of judgment, or any action taken, suffered or omitted to be taken, hereunder except in the case of its negligence, bad faith or willful misconduct. The Escrow Agent may consult with counsel of its own choice (including in-house counsel) and shall have full and complete authorization and protection for any knowledge until action taken or suffered by it hereunder in good faith and in accordance with the opinion of such facts are communicated counsel.
(e) The Seller and the Purchaser shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys' fees, incurred without negligence, bad faith or willful misconduct on the part of the Escrow Agent arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement.
(f) The Escrow Agent may at any time resign by giving twenty business days' prior written notice of resignation to the Seller and the Purchaser. The Seller and the Purchaser may, with the consent of the Seller's Lender, at any time jointly remove the Escrow Agent by giving ten business days' written notice signed by each of them to the Escrow Agent. If the Escrow Agent shall resign or be removed, a successor Escrow Agent, which shall be a bank or trust company having its principal executive offices in New York and assets in excess of $1.5 billion, and which shall be reasonably acceptable to the Seller and the Seller's Lender, shall be appointed by the Purchaser by written instrument executed by the Purchaser and delivered to the Escrow Agent in writing. The and to such successor Escrow Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent shall not be required become effective and such successor Escrow Agent, without any further act, deed or conveyance, shall become vested with all right, title and interest to institute or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements all cash and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with property held hereunder of such action, except with respect to matters arising out of the gross negligence or willful misconduct of predecessor Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, If no successor Escrow Agent shall have been appointed within twenty business days of a notice of resignation by the option Escrow Agent, the Escrow Agent's sole responsibility shall thereafter be to deposit hold the Earn▇▇▇ ▇▇▇ey Deposit into Escrowed Items until the earliest of (i) its receipt of designation of a court successor Escrow Agent, (ii) its receipt of competent jurisdiction pending resolution a written instruction by the Seller, the Purchaser and the Seller's Lender or (iii) termination of the deposition of said funds and to interplead Seller and Purchaser this Agreement in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibilityaccordance with its terms.
Appears in 1 contract
Escrow Agent. The Escrow Agent referred to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Group. 5.1 The Escrow Agent shall not in any way be charged with bound or affected by a notice of modification or cancellation of this Escrow Agreement unless notice thereof is given to the Escrow Agent by both Seller and Buyer, nor shall the Escrow Agent be bound by any knowledge until such facts are communicated modification of its obligations hereunder unless the same shall be consented to by the Escrow Agent in writing. The Escrow Agent shall be entitled to rely upon any judgment, certification, demand or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any facts stated therein, the propriety or validity of the service thereof, or the jurisdiction issuing any judgment.
5.2 The Escrow Agent shall not be under any duty to give the property held by it hereunder any greater care than it gives its own similar property.
5.3 The Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine, and it may assume that any person purporting to give any notice or make any statement in connection with the provisions hereof has been duly authorized to do so.
5.4 The Escrow Agent may act in reliance upon advice of counsel in reference to any matter connected herewith, and shall not be liable for any mistake of fact or error of judgment, or for any act or omission of any kind except to the extent that such act or omission constitutes willful misconduct, gross negligence or fraud.
5.5 The Escrow Agent shall not have any responsibility for the payment of taxes except with funds furnished to the Escrow Agent for that purpose.
5.6 This Escrow Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent hereto. Except as otherwise expressly provided herein, the Escrow Agent shall not refer to, and shall not be bound by, the provisions of any other agreement.
5.7 Except with respect to claims based upon the Escrow Agent's willful misconduct, gross negligence or fraud, Buyer shall indemnify and hold harmless the Escrow Agent from any claims made against the Escrow Agent by Seller arising out of or relating to this Escrow Agreement, and Seller shall indemnify and hold the Escrow Agent harmless from any claims made against the Escrow Agent by Buyer arising out of or relating to this Escrow Agreement. Buyer and Seller jointly and severally shall indemnify and hold the Escrow Agent harmless from any claim made by any third party arising out of or relating to this Escrow Agreement, such indemnification to include all costs and expenses incurred by the Escrow Agent, including reasonable attorneys' fees.
5.8 The Escrow Agent shall not be required to institute or maintain defend any litigation action involving any matters referred to herein or which affect it or its duties or liability hereunder, unless indemnified or until requested to his satisfaction for his counsel do so by any party to this Escrow Agreement and then only upon receiving full indemnity, in character satisfactory to the Escrow Agent, against any and all claims, liabilities and expenses, including reasonable attorneys' fees, costsin relation thereto.
5.9 Upon termination of this Escrow Agreement, disbursements the Escrow Agent may request from Buyer and all Seller such additional assurances, certificates, satisfactions, releases and/or other expenses documents as it may deem appropriate to evidence the termination of this Escrow Agreement.
5.10 The Escrow Agent shall not be entitled to receive a fee for serving as the Escrow Agent hereunder.
5.11 Buyer and liabilities Seller acknowledge that it may be necessary, for federal income tax or other purposes, for the Escrow Agent to which he may, in his judgment, be subjected in connection with such action, except know the employer identification numbers ("EIN") of Buyer and Seller. Buyer represents that its EIN is 63-1▇▇▇▇▇▇. ▇eller represents that its EIN is 84-1▇▇▇▇▇▇.
5.12 Seller acknowledges that the Escrow Agent is merely acting as a depository hereunder and that the Escrow Agent has served as counsel for Buyer with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agenttransactions contemplated herein. Seller and Purchaser shall at all times indemnify agrees that the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered entitled to dispose serve as legal counsel and to represent Buyer in any dispute involving Buyer and Seller, and Seller hereby waives any right to assert any conflict of interest or to object to the Earn▇▇▇ ▇▇▇ey Deposit Escrow Agent representing Buyer based on its services as provided for in said paragraph without incurring any liabilitythe Escrow Agent. In the event of a dispute between Seller and Purchaser which cannot be resolved, The Escrow Agent shall have the option not be treated as being in a conflict situation with respect to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court its representation of competent jurisdiction pending resolution Buyer by virtue of the deposition of said funds and Escrow Agent's agreeing to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibilityserve hereunder.
Appears in 1 contract
Escrow Agent. The Escrow Agent referred to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Group. The Escrow Agent shall not be charged liable under this Agreement except for its own gross negligence or willful misconduct. Except with any knowledge until such facts respect to misconduct that are communicated to successfully asserted against the Escrow Agent, Buyer and Seller jointly and severally 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 disbursement, arising out of or in writingconnection with this Agreement. This Agreement expressly sets forth all of the duties of the Escrow Agent with respect to any and all matters pertinent to this Agreement. In performing its duties hereunder, the Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice instrument or other writing delivered to it under this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent shall not may act in reliance upon any instrument or signature reasonably believed by it to be required genuine and may assume that any person signing such instrument or purporting to institute or maintain give any litigation unless indemnified notice hereunder has been duly authorized to his satisfaction for his do so. The Escrow Agent may act in good faith pursuant to the advice of counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out any matter relating to this Agreement, including without limitation, any determination that a Court order is final and non-appealable. The Escrow Agent may only resign and be discharged from its duties or obligations hereunder if: (i) it has given written notice to the parties hereto of such resignation, specifying a date when such resignation shall take effect, and (ii) a replacement Escrow Agent has been selected and accepted by the gross negligence or willful misconduct of parties. Should the parties not agree upon a replacement Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect both parties agree to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser apply to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court Court of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibilityfor such a selection.
Appears in 1 contract
Escrow Agent. (a) Limitation of the Escrow Agent's Liability; Responsibilities of the Escrow Agent. The Escrow Agent's responsibility and liability under this Agreement shall be limited as follows:
(i) the Escrow Agent does not represent, warrant or guaranty to the holders of the Securities from time to time the performance of the Company; (ii) the Escrow Agent shall have no responsibility to the Company or the holders of the Securities or the Trustee from time to time as a consequence of performance or non-performance by the Escrow Agent hereunder, except for any gross negligence or willful misconduct of the Escrow Agent; (iii) the Company shall remain solely responsible for all aspects of the Company's business and conduct; and (iv) the Escrow Agent is not obligated to supervise, inspect or inform the Company or any third party of any matter referred to above. No implied covenants or obligations shall be inferred from this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by the provisions of any agreement beyond the specific terms hereof. Specifically and without limiting the foregoing, the Escrow Agent shall in no event have any liability in connection with its investment, reinvestment or liquidation, in good faith and in accordance with the terms hereof, of any funds or U.S. Government Securities held by it hereunder, including without limitation any liability for any delay not resulting from gross negligence or willful misconduct in such investment, reinvestment or liquidation, or for any loss of principal or income incident to any such delay. The Escrow Agent referred to above shall be Rich▇▇▇ ▇entitled to rely upon any judicial order or judgment, upon any written opinion of counsel or upon any certification, instruction, notice, or other writing delivered to it by the Trustee in compliance with the provisions of this Agreement or by the Company, to the extent not inconsistent with any instruction of the Trustee, in either case, without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of service thereof. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment GroupThe Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. At any time the Escrow Agent may request in writing an instruction in writing from the Company, and may at its own option include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder; provided, however, that the Escrow Agent shall state in such request that it believes in good faith that such proposed course of action is consistent with another identified provision of this Agreement. The Escrow Agent shall not be charged liable to the Company for acting without the Company's consent in accordance with any knowledge until such facts are communicated a proposal on or after the date specified therein if (i) the specified date is at least two business days after the Company receives the Escrow Agent's request for instructions and its proposed course of action, and (ii) prior to so acting, the Escrow Agent has not received the written instructions requested from the Company. The Escrow Agent may act pursuant to the written advice of counsel chosen by it with respect to any matter relating to this Agreement and (subject to clause (ii) of the first paragraph of this Section 4(a)) shall not be liable for any action taken or omitted in writingaccordance with such advice. The Escrow Agent shall not be required called upon to institute advise any party as to selling or maintain retaining, or taking or refraining from taking any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except action with respect to matters arising out of the gross negligence to, any securities or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liabilityother property deposited hereunder. In the event of a dispute between Seller and Purchaser which cannot be resolvedany ambiguity in the provisions of this Agreement with respect to any funds or property deposited hereunder, the Escrow Agent shall be entitled to refuse to comply with any and all claims, demands or instructions with respect to such funds or property, and the Escrow Agent shall not be or become liable for its failure or refusal to comply with conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until either any conflicting or adverse claims or demands shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into been finally determined by a court of competent jurisdiction pending resolution of or settled by agreement between the deposition of said funds and conflicting claimants as evidenced in a writing, satisfactory to interplead Seller and Purchaser in respect thereofthe Escrow Agent, and upon depositing said funds, or the Escrow Agent shall bear no further responsibilityhave received security or an indemnity satisfactory to the Escrow Agent sufficient to save the Escrow Agent harmless from and against any and all loss, liability or expense which the Escrow Agent may incur by reason of its acting. The Escrow Agent may in addition elect in its sole option to commence an interpleader action or seek other judicial relief or orders as the Escrow Agent may deem necessary. No provision of this Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.
Appears in 1 contract
Escrow Agent. 4.1 In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
4.2 The Company and Synergy jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors and assigns from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof.
4.3 In case proceedings should hereafter be taken in any court respecting the Escrow Documents, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 0 against its costs of such proceedings.
4.4 The Escrow Agent referred will have no responsibility in respect of loss of the Escrow Documents except the duty to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Groupexercise such care in the safekeeping thereof as it would exercise if the Escrow Documents belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel.
4.5 The Escrow Agent will not be bound in any way by any contract between the other parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Escrow Documents as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Escrow Documents or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential for their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent.
4.6 In the event that the Escrow Documents are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, orders, judgments or decrees, it will not be liable to any of the parties hereto or to any other person, form or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated.
4.7 Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgments or decrees and in case of such compliance, it shall not be charged with liable by reason thereof to any knowledge of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated.
4.8 If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Escrow Documents until such facts are communicated the lawful determination of the issue between the parties hereto.
4.9 If written notice of protest is made by either Synergy or the Company to the Escrow Agent in writing. The Escrow Agent shall not be required to institute or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify action contemplated by the Escrow Agent against all actionsunder this Agreement, proceedingsand such notice sets out reasons for such protest, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered may continue to dispose of hold the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In Escrow Documents until the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have right to the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into documents is legally determined by a court of competent jurisdiction pending resolution or otherwise.
4.10 The Escrow Agent may resign as Escrow Agent by giving not less than 30 days' notice thereof to Synergy and the Company. Synergy and the Company may terminate the Escrow Agent by giving not less than 30 days' notice to the Escrow Agent. The resignation or termination of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibilitywill be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is 30 days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, Synergy and the Company may agree upon. All indemnities granted to the Escrow Agent herein will survive the termination of this Agreement or the termination or resignation of the Escrow Agent.
4.11 Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given jointly by the Company and Synergy.
4.12 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between Synergy and the Company with respect to the Consulting Agreement, this Agreement or any matters arising thereto, the Escrow Agent may in its sole discretion deliver and interplead the Escrow Documents and all funds held in the Escrow Account into court and such delivery and interpleading will be an effective discharge to the Escrow Agent.
4.13 It is understood that in addition to acting as the Escrow Agent hereunder, the Escrow Agent is also acting as solicitor for the Company and not for any other party to this Agreement and the parties have requested that the Escrow Agent act in this capacity.
4.14 The Company and Synergy acknowledge that they have been advised to consult their own legal advisors with respect to this Agreement, the applicable hold periods and resale restrictions regarding the Shares and they covenant and agree that they are solely responsible for compliance with all applicable restrictions in regards to the Shares.
Appears in 1 contract
Escrow Agent. 3.1 The Escrow Agent’s duties hereunder may be altered, amended, modified or revoked only by a writing signed by the Company, the Principal Stockholders, the Purchaser Representative and the Escrow Agent.
3.2 The Escrow Agent referred to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Groupobligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be charged with personally liable for any knowledge until such facts are communicated to act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting in writinggood faith and in the absence of gross negligence, fraud or willful misconduct, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s attorneys-at-law shall be conclusive evidence of such good faith, in the absence of gross negligence, fraud or willful misconduct.
3.3 The Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation, excepting only orders or process of courts of law and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, the Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
3.4 The Escrow Agent shall not be required to institute or maintain liable in any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out on account of the identity, authorization or rights of the parties executing or delivering or purporting to execute or deliver any documents or papers deposited or called for thereunder in the absence of gross negligence negligence, fraud or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, misconduct.
3.5 The Escrow Agent shall be empowered entitled to dispose employ such legal counsel and other experts as the Escrow Agent may deem necessary to properly advise the Escrow Agent in connection with the Escrow Agent’s duties hereunder, may rely upon the advice of such counsel, and may pay such counsel reasonable compensation therefor which shall be paid by the Escrow Agent. The Escrow Agent has acted as legal counsel for the Company. The Company and the Purchasers consent to the Escrow Agent in such capacity as legal counsel for the Company and waive any claim that such representation represents a conflict of interest on the part of the Earn▇▇▇ ▇▇▇ey Deposit Escrow Agent. The Company and the Purchasers understand that the Escrow Agent is relying explicitly on the foregoing provision in entering into this Escrow Agreement.
3.6 The Escrow Agent’s responsibilities as provided for in said paragraph without incurring any liabilityescrow agent hereunder shall terminate if the Escrow Agent shall resign by giving 45 days’ prior written notice to the Company and the Purchasers. In the event of any such resignation, the Purchasers and the Company shall appoint a dispute between Seller successor Escrow Agent and Purchaser which cannot be resolved, the Escrow Agent shall deliver to such successor Escrow Agent any escrow funds and other documents held by the Escrow Agent.
3.7 If the Escrow Agent reasonably requires other or further instruments in connection with this Escrow Agreement or obligations in respect hereto, the necessary parties hereto shall use its best efforts to join in furnishing such instruments.
3.8 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the documents or the Escrow Shares held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed in the Escrow Agent’s sole discretion (1) to retain in the Escrow Agent’s possession without liability to anyone all or any part of said documents or the Escrow Shares until such disputes shall have been settled either by mutual written agreement of the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into parties concerned or by a final order, decree or judgment or a court of competent jurisdiction pending resolution of after the deposition of said funds time for appeal has expired and to interplead Seller and Purchaser in respect thereofno appeal has been perfected, and upon depositing said funds, but the Escrow Agent shall bear be under no further responsibilityduty whatsoever to institute or defend any such proceedings or (2) to deliver the Escrow Shares and any other property and documents held by the Escrow Agent hereunder to a state or Federal court having competent subject matter jurisdiction and located in the City of New York, Borough of Manhattan, in accordance with the applicable procedure therefor.
3.9 The Company agrees to indemnify and hold harmless the Escrow Agent and its partners, employees, agents and representatives from any and all claims, liabilities, costs or expenses in any way arising from or relating to the duties or performance of the Escrow Agent hereunder or the transactions contemplated hereby other than any such claim, liability, cost or expense to the extent the same shall have been determined by final, unappealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, fraud or willful misconduct of the Escrow Agent.
Appears in 1 contract
Sources: Securities Escrow Agreement (Silver Pearl Enterprises, Inc.)
Escrow Agent. 5.1 The Escrow Agent referred may act in reliance upon any writing or instrument or signature which it, in good faith, believes to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Groupgenuine; may assume the validity and accuracy of any statements or assertions contained in such writing or instrument; and may assume that any person purporting to give any writing, notice, advice or instruction in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent shall not be charged with liable in any knowledge until such facts are communicated manner for the sufficiency or correctness as to form, manner of execution, or validity of any written instructions delivered to it; nor as to the identity, authority, or rights of any person executing the same. The duties of the Escrow Agent shall be limited to the safekeeping of the Escrow Account and to disbursements of same in writingaccordance with the provisions hereof. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, and no implied duties or obligations of the Escrow Agent shall be implied by virtue of this Agreement.
5.2 The Escrow Agent may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The Escrow Agent shall not be required to institute liable for any mistakes of fact or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his error of judgment, be subjected in connection with such action, except with respect to matters arising out or for any acts or omissions of the gross negligence or any kind unless caused by its willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, negligence.
5.3 The Escrow Agent shall be empowered indemnified and held harmless by the Company from and against any reasonable expenses, including counsel fees and disbursements, or loss suffered by the Escrow Agent in connection with any third party action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way directly or indirectly arises out of or relates to dispose this Agreement, the services of the Earn▇▇▇ ▇▇▇ey Deposit as provided for 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 said paragraph without incurring 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 liabilityparty from any liability which such party may have to the Escrow Agent hereunder. In the event of the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow 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 dispute between Seller final, non-appealable order of a court having jurisdiction over all of the parties hereto directing to whom and Purchaser which canunder what circumstances the Escrow Account is to be disbursed and delivered.
5.4 During the term hereof, the Escrow Agent shall invest the Offering Proceeds at the discretion of the Company in either short-term U.S. government securities or in short-term U.S. treasury collateralized instruments and all monies earned as a result of such investment shall remain in escrow and shall be for the benefit of the Company and shall be used by the Company either (i) following a Business Combination in connection with the operation of an Acquired Business (as such term is defined in the Prospectus) or (ii) in connection with the distribution to the shareholders through the exercise of the Redemption Offer or the liquidation of the Company. In the event the Escrow Agent receives no direction from the Company with respect to the investment of the Offering Proceeds, the Escrow Agent shall invest the Offering Proceeds in direct obligations of the U.S. Government or in short-term U.S. treasury collateralized instruments and all interest earned thereon shall be for the benefit of the Company.
5.5 The Escrow Agent shall be entitled to reasonable compensation from the Company for all services rendered by it hereunder, not to exceed half of one percent of the market value of the Escrow Account, on an annualized basis.
5.6 From time to time on and after the date hereof, the Company shall deliver or cause to be resolved, delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent shall reasonably request (it being understood that the Escrow Agent shall have no obligation to make such request) to carry out more effectively the option provisions and purposes of this Agreement, to deposit evidence compliance herewith or to assure itself that it is protected in acting hereunder.
5.7 The Escrow Agent may resign at any time and be discharged from its duties as Escrow Agent hereunder by its giving the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of other parties hereto at least thirty (30) days prior written notice thereof. As soon as practicable after its resignation, the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear turn over to a successor escrow agent appointed by the other parties hereto, jointly, all monies and property held hereunder upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no further responsibilitynew escrow agent is so appointed within 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.
5.8 The Escrow Agent shall resign and be discharged from 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 in paragraph 5.7.
5.9 Notwithstanding anything herein to the contrary, the Escrow Agent shall not be relieved from liability hereunder for its own gross negligence or its own willful misconduct.
Appears in 1 contract
Escrow Agent. 13.1 Save pursuant to the terms and conditions of this escrow agreement or by joint written instructions signed by the purchaser and the seller, the escrow agent shall not sell, transfer or otherwise dispose of in any manner any portion of the escrow fund except pursuant to an order of court of competent jurisdiction.
13.2 The Escrow Agent referred to above duties and obligations the escrow agent shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Group. The Escrow Agent determined solely for the express provisions of this escrow agreement and the escrow agent shall not be charged with liable except for the performance of such duties and obligations as are specifically set forth in this escrow agreement.
13.3 In the performance of its duties hereunder, the escrow agent shall be entitled to rely upon any knowledge until such facts are communicated document, instrument or signature believed by it in good faith to the Escrow Agent in writing. The Escrow Agent be genuine and signed by any party to this escrow agreement or an authorised officer, or agent thereof, and shall not be required to institute investigate the truth or maintain accuracy of any litigation unless indemnified statement contained in any such document or instrument. The escrow agent may assume that any person purporting to his satisfaction give any notice in accordance with the provisions of this escrow agreement has been duly authorised to do so.
13.4 The escrow agent shall not be liable for his any error of judgment or any action taken, suffered or omitted to be taken in terms of this escrow agreement except in the case of its gross negligent or wilful misconduct. In addition the escrow agent shall not be liable for the default or misconduct of any employee, agent or attorney appointed by it who shall have been selected with reasonable care and may consult with counsel feesof its own choice and shall have full and complete authorisation and protection for any action taken or suffered by it in terms of this escrow agreement in good faith and in accordance with the opinion of such counsel.
13.5 The escrow agent shall have no duty as to the collection or protection of the escrow fund or income thereon nor as to the preservation of any rights pertaining thereto beyond the safe-custody of any such funds actually in its possession.
13.6 As compensation for its services to be rendered in terms of this escrow agreement, costsfor each year or any portion thereof, the escrow agent will receive a 1% escrow fee of the transaction value and will be reimbursed upon request for all expenses, disbursements and all other expenses and liabilities to which he mayadvances, in his judgmentincluding reasonable fees of outside counsel, be subjected if any, incurred or made by it in connection with the preparation of this escrow agreement or the carrying out of its duties under this escrow agreement. All such actionexpenses shall be divided equally between the purchaser and the seller and the escrow agent shall have a first lien on the escrow fund for the payment of such fees and expenses.
13.7 The seller and the purchaser shall reimburse and indemnify the escrow agent for, except with respect and hold it harmless against, any loss, liability or expense including but not limited to matters reasonable attorneys fees, incurred without gross negligence or wilful misconduct on the part of the escrow agent arising out of or in connection with the gross negligence acceptance of or willful misconduct the performance of Escrow Agent. Seller its duties and Purchaser shall at all times indemnify obligations under this escrow agreement as well as the Escrow Agent reasonable costs and expenses of defending itself against all actions, proceedings, claims any claim or demands liability arising out of or relating to this transactionescrow agreement, except with respect any such reimbursement and indemnification to matters arising out be divided equally between the purchaser and the seller.
13.8 The escrow agent may at any time resign by giving not less than 30 days' written notice of resignation to the seller and the purchaser. The seller and the purchaser may at any time jointly remove the escrow agent by giving not less than 15 days written notice signed by both such parties to the escrow agent. If the escrow agent shall resign or be removed, a successor escrow agent, which shall be a financial institution having its principal office in the Republic of South Africa and which shall be reasonably acceptable to the purchaser, shall be appointed by the seller by written instrument executed by the purchaser and the seller and delivered to the escrow agent and to such successor escrow agent.
13.9 Upon such appointment, the resignation or removal of the gross negligence previous escrow agent shall become effective and such successor escrow agent, without any further act or willful misconduct deed or transfer shall become vested with all the right, title and interest to the escrow fund; but nevertheless, such previous escrow agent shall, on the written request of Escrow Agentthe seller, the purchaser or the successor escrow agent, execute and deliver to the successor escrow agent all its right, title and interest under this escrow agreement and in and to the escrow fund and all other rights hereunder of such predecessor escrow agent. Upon failure If no successor escrow agent is appointed at the end of Purchaser to comply with 30 days after notice of resignation by the requirements as set forth herein and pursuant to Paragraph 13 hereofescrow agent, Escrow Agent the escrow agent's sole responsibility after that time shall be empowered to dispose safe-keep the escrow fund until receipt of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event designation of a dispute between Seller successor escrow agent, joint written instruction by the seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court purchaser or termination of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser this escrow agreement in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibilityaccordance with its terms.
Appears in 1 contract
Sources: Escrow Agreement
Escrow Agent. The Escrow Agent referred To induce Mintz Levin Cohn Ferris Glovsky and Popeo, P.C. to above shall be Richserve as the esc▇▇▇ ▇. g▇▇▇ ▇n▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇pacit▇ Colonial Investment Group. ▇▇▇eunder, it is agreed by the parties hereto that:
8.1 The Escrow Agent escrow agent shall not be charged under any duty to give the property held by it hereunder (the "Escrowed Property") any greater degree of care than it gives its own similar property.
8.2 This Section 8 of this Agreement expressly sets forth all the duties of the escrow agent with respect to any knowledge until such facts are communicated to and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent in writingescrow agent. The Escrow Agent escrow agent shall not be required to institute bound by the provisions of any agreement among the other parties hereto except this Section 8 of this Agreement.
8.3 The escrow agent shall not be liable, except for its own gross negligence or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such actionwillful misconduct and, except with respect to matters arising out of the claims based upon such gross negligence or willful misconduct of Escrow Agent. Seller that are successfully asserted against the escrow agent, the other parties hereto shall jointly and Purchaser shall at severally indemnify and hold harmless the escrow agent from and against any and all times indemnify the Escrow Agent against all losses, liabilities, claims, actions, proceedingsdamages and expenses, claims or demands including, without limitation, reasonable attorneys' fees and disbursements, arising out of or in connection with this transactionAgreement.
8.4 The escrow agent shall be entitled to rely upon any order, except 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 to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
8.5 The escrow agent may act pursuant to the advice of counsel with respect to matters arising out any matter relating to this Agreement and shall not be liable for any action taken or omitted in accordance with such advice.
8.6 The escrow agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The other parties shall, on a joint and several basis, pay or reimburse the escrow agent upon request for any and all expenses, if any, incurred by the escrow agent in connection with this Agreement and transfer taxes or other taxes relating to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the escrow agent from any amounts that it is obligated to pay in the way of such expenses and taxes. The escrow agent shall first seek such payment or reimbursement from the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein Company, and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller is unable to do so, shall seek such payment and Purchaser which cannot be resolved, Escrow Agent shall have reimbursement from the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibility.Investors. This
Appears in 1 contract
Sources: Securities Purchase Agreement (Palatin Technologies Inc)
Escrow Agent. The Escrow Agent referred to above shall be RichTo induce ▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Colonial Investment Group. and ▇▇▇▇▇, P.C. to serve as the escrow agent and to act in such capacity hereunder, it is agreed by the parties hereto that:
8.1 The Escrow Agent escrow agent shall not be charged under any duty to give the property held by it hereunder (the “Escrowed Property”) any greater degree of care than it gives its own similar property.
8.2 This Section 8 of this Agreement expressly sets forth all the duties of the escrow agent with respect to any knowledge until such facts are communicated to and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent in writingescrow agent. The Escrow Agent escrow agent shall not be required to institute bound by the provisions of any agreement among the other parties hereto except this Section 8 of this Agreement.
8.3 The escrow agent shall not be liable, except for its own gross negligence or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such actionwillful misconduct and, except with respect to matters arising out of the claims based upon such gross negligence or willful misconduct of Escrow Agent. Seller that are successfully asserted against the escrow agent, the other parties hereto shall jointly and Purchaser shall at severally indemnify and hold harmless the escrow agent from and against any and all times indemnify the Escrow Agent against all losses, liabilities, claims, actions, proceedingsdamages and expenses, claims or demands including, without limitation, reasonable attorneys’ fees and disbursements, arising out of or in connection with this transactionAgreement.
8.4 The escrow agent shall be entitled to rely upon any order, except 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 to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
8.5 The escrow agent may act pursuant to the advice of counsel with respect to matters arising out any matter relating to this Agreement and shall not be liable for any action taken or omitted in accordance with such advice.
8.6 The escrow agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The other parties shall, on a joint and several basis, pay or reimburse the escrow agent upon request for any and all expenses, if any, incurred by the escrow agent in connection with this Agreement and transfer taxes or other taxes relating to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the escrow agent from any amounts that it is obligated to pay in the way of such expenses and taxes. The escrow agent shall first seek such payment or reimbursement from the Company, and in the event is unable to do so, shall seek such payment and reimbursement from the Investors. This Section 8.6 and Section 8.3 shall survive notwithstanding any termination of this Agreement or the resignation of the gross negligence escrow agent.
8.7 The escrow agent makes no representation as to the validity, value, genuineness or willful misconduct the collectability of Escrow Agent. Upon failure any security or other document or instrument held by or delivered to it.
8.8 The 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 Purchaser to comply with competent jurisdiction, whereupon the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent escrow agent shall be empowered to dispose discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liabilityescrow 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 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.
8.9 In the event of a dispute any disagreement between Seller and Purchaser which cannot 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 resolved, Escrow Agent entitled to retain the Escrowed Property until the escrow agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into received (i) a final non-appealable order of a court of competent jurisdiction pending resolution directing delivery of the deposition 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 funds opinion is final and non-appealable.
8.10 Notwithstanding anything to interplead Seller the contrary contained herein, the escrow agent’s duties and Purchaser obligations hereunder shall terminate upon the release and distribution of the Escrowed Property in accordance with the terms of this Agreement. Each of the Company and the Investor understands and agrees that, notwithstanding its duties as escrow agent hereunder, the escrow agent is the attorney for the Company, and, accordingly, neither any services as escrow agent hereunder nor any provisions hereof, either express or implied, shall restrict or inhibit the escrow agent in any way from representing the Company or its affiliates in any action, dispute, controversy, arbitration, suit or negotiation arising under this Agreement or under any other agreement or in any manner or context whatsoever, whether or not directly or indirectly involving the Company or its affiliates. Notwithstanding anything to the contrary contained herein, if at any time a law firm representing either Company or Investor serves or is serving as escrow agent, then with respect thereofto such law firm’s capacity as escrow agent, and upon depositing said fundssuch counsel shall not for these purposes serve as the agent for either of the parties, Escrow Agent but shall bear no further responsibilitybe a fiduciary of both parties.
Appears in 1 contract
Sources: Securities Purchase Agreement (Palatin Technologies Inc)
Escrow Agent. (a) Limitation of the Escrow Agent’s Liability: Responsibilities of the Escrow Agent. The Escrow Agent’s responsibility and liability under this Agreement shall be limited as follows:
(i) the Escrow Agent does not represent, warrant or guaranty to the Holders from time to time the performance of the Company; (ii) the Escrow Agent shall have no responsibility to the Company or the Beneficiaries from time to time as a consequence of performance or non-performance by the Escrow Agent hereunder, except for any gross negligence or willful misconduct of the Escrow Agent; (iii) the Company shall remain solely responsible for all aspects of the Company’s business and conduct; and (iv) the Escrow Agent is not obligated to supervise, inspect or inform the Company or any third party of any matter referred to above. No implied covenants or obligations shall be inferred from this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by the provisions of any agreement beyond the specific terms hereof. Specifically and without limiting the foregoing, the Escrow Agent shall in no event have any liability in connection with its investment, reinvestment or liquidation, in good faith and in accordance with the terms hereof, of any funds or U.S. Government Securities held by it hereunder, including without limitation any liability for any delay not resulting from gross negligence or willful misconduct in such investment, reinvestment or liquidation, or for any loss of principal or income incident to any such delay. The Escrow Agent referred to above shall be Rich▇▇▇ ▇entitled to rely upon any judicial order or judgment, upon any written opinion of counsel or upon any certification, instruction, notice, or other writing delivered to it by the Company or the Trustee in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of service thereof. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment GroupThe Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent may act pursuant to the written advice of counsel chosen by it with respect to any matter relating to this Agreement and (subject to clause (ii) of the first paragraph of this Section 4(a)) shall not be liable for any action taken or omitted in accordance with such advice. The Escrow Agent shall not be charged called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any knowledge until such facts are communicated securities or other property deposited hereunder. In the event of any ambiguity in the provisions of this Agreement with respect to any funds or property deposited hereunder, the Escrow Agent in writingshall be entitled to refuse to comply with any and all claims, demands or instructions with respect to such funds or property, and the Escrow Agent shall not be or become liable for its failure or refusal to comply with conflicting claims, demands or instructions. The Escrow Agent shall not be required entitled to institute refuse to act until either any conflicting or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, adverse claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into been finally determined by a court of competent jurisdiction pending resolution of or settled by agreement between the deposition of said funds and conflicting claimants as evidenced in a writing, satisfactory to interplead Seller and Purchaser in respect thereofthe Escrow Agent, and upon depositing said funds, or the Escrow Agent shall bear no further responsibilityhave received security or an indemnity satisfactory to the Escrow Agent sufficient to save the Escrow Agent harmless from and against any and all loss, liability or expense which the Escrow Agent may incur by reason of its acting. The Escrow Agent may in addition elect at its sole option to commence an interpleader action or seek other judicial relief or orders as the Escrow Agent may deem necessary. No provision of this Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.
Appears in 1 contract
Sources: Escrow Agreement
Escrow Agent. The Escrow Agent referred to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Group. The Escrow Agent shall not be charged with liable for any knowledge until such facts are communicated action taken or omitted by it in good faith and its liability hereunder shall be limited to liability for gross negligence, willful misconduct or bad faith on its part. The Company and the Purchaser agree to save harmless, indemnify and defend the Escrow Agent in writing. The for, from and against any loss, damage, liability, judgment, cost and expense whatsoever, by reason of, or on account of, any misrepresentation made to it or its status or activities as Escrow Agent under this Agreement except for any loss, damage, liability, judgment, cost or expense resulting from gross negligence, willful misconduct or bad faith on the part of the Escrow Agent. It is understood and further agreed that the Escrow Agent shall:
(a) be under no duty to enforce payment of any subscription that is to be paid to and held by it hereunder;
(b) promptly notify the Purchaser and the Company of any discrepancy between the amounts set forth on any statement delivered by the Purchaser and/or the Company and the sum or sums delivered to it therewith;
(c) be under no duty to accept funds, checks, drafts or instruments for the payment of money from anyone other than the Company or the Purchaser, or to give any receipt therefor except to the Company or the Purchaser, with a copy in each case to the Company;
(d) be protected in acting upon any notice, request, certificate, approval, consent or other paper reasonably believed by it to be genuine and to be signed by the proper party or parties;
(e) be permitted to consult with counsel of its choice, and shall not be required to institute liable for any action taken, suffered, or maintain omitted by it in accordance with the advice of such counsel; provided, however, that nothing in this subsection (e), nor any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out of action taken by the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser , or suffered or omitted by it in accordance with the advice of any counsel, shall at all times indemnify relieve the Escrow Agent against from liability for any claims that are occasioned by its gross negligence, willful misconduct, or bad faith;
(f) not be bound by any modification, amendment, termination, cancellation, or rescission of this Agreement, unless the same shall be in writing and signed by it;
(g) be entitled to refrain from taking any action other than to keep all actionsproperty held in escrow if it (i) shall be uncertain concerning its duties or rights hereunder, proceedings, or (ii) shall have received claims or demands arising out from any party, or (iii) shall have received instructions from the Purchaser and/or the Company that, in the Escrow Agent's opinion, are in conflict with any of the provisions of this transactionAgreement, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent until it shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into received a final judgment by a court of competent jurisdiction pending resolution jurisdiction;
(h) have no liability for following the instructions herein or expressly provided for herein, or the joint written instructions given by the Purchaser and the Company; and
(i) have the right, at any time, to resign hereunder by giving written notice of its resignation to all other parties hereto at least three (3) days prior to the deposition of said funds and date specified for such resignation to interplead Seller and Purchaser in respect thereoftake effect, and upon depositing said funds, the effective date of such resignation all cash and other payments and all other property then held by the Escrow Agent hereunder shall bear be delivered by it to such person as may be designated in writing by the other parties executing this Agreement, whereupon the Escrow Agent's obligations hereunder shall cease and terminate. If no further responsibilitysuch person has been designated by such date, all obligations of the Escrow Agent hereunder shall, nevertheless, cease and terminate. The Escrow Agent's sole responsibility thereafter shall be to keep safely all property then held by it and to deliver the same to a person designated by the other parties executing this Agreement or in accordance with the directions of a final order or judgment of a court of competent jurisdiction.
Appears in 1 contract
Sources: Securities Purchase Agreement (Exsorbet Industries Inc)
Escrow Agent. The Escrow Agent referred to above shall have only those duties as are specifically and expressly provided herein, which shall be Rich▇▇▇ ▇deemed purely ministerial in nature, and no other duties, including but not limited to any fiduciary duties, shall be implied. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment GroupEscrow Agent has no knowledge of, nor any obligation to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. The Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind, and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. Escrow Agent shall not be charged liable for any action taken, suffered or omitted to be taken by it except to the extent that Escrow Agent's gross negligence or willful misconduct was the cause of any direct loss to any Party. Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents and shall be responsible for the actions of any such parties appointed with due care. In the event Escrow Agent shall be uncertain, or believes there is some ambiguity, as to its duties or rights hereunder or receives instructions, claims or demands from any knowledge Party hereto which in Escrow Agent's judgment conflict with the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent shall be entitled either to (a) refrain from taking any action until it shall be given (i) a Joint Written Direction which eliminates such facts are communicated to conflict or (ii) a court order issued by a court of competent jurisdiction or a decision by an arbitrator (it being understood that the Escrow Agent shall be entitled conclusively to rely and act upon any such court order or arbitration decision and shall have no obligation to determine whether any such court order or arbitration decision is final, or (b) file an action in writinginterpleader. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Fund, including, without limitation, the Escrow Share Deposit, nor shall Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. Escrow Agent shall be under no obligation to inquire into, and shall not be liable for, any Losses (as defined below) incurred by Seller, Company, the Bonus Executives or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid shares of stock, or shares of stock which otherwise is not freely transferable or deliverable without encumbrance in any relevant market. Escrow Agent may, with respect to questions of law, obtain the advice of counsel and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. No provision of this Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Escrow Agent shall not be required to institute responsible for the acts or maintain omissions of any litigation unless indemnified to his satisfaction for his counsel feestransfer agent or depositary that holds, costscontrols, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection transfers or otherwise deals with such action, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow AgentCompany Common Stock. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims is authorized to supply any information regarding the escrow account which is required by any law or demands arising out of this transaction, except with respect to matters arising out of the gross negligence governmental regulation now or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for hereafter in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibilityeffect.
Appears in 1 contract
Sources: Indemnification Escrow Agreement (Cole Credit Property Trust III, Inc.)
Escrow Agent. The parties further agree that:
3.3.1 The Escrow Agent referred is executing this Agreement to above acknowledge the Escrow Agent's responsibilities hereunder, which may be modified only by a written amendment signed by all of the parties. Any amendment to this Agreement that is not signed by the Escrow Agent shall be Rich▇▇▇ ▇effective as to the parties thereto, but shall not be binding on the Escrow Agent. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Group. Escrow Agent shall accept the Deposit with the understanding of the parties that Escrow Agent is not a party to this Agreement except to the extent of its specific responsibilities hereunder, and does not assume or have any liability for the performance or non-performance of Buyer or Seller hereunder to either of them.
3.3.2 The Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to the Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document;
3.3.3 The Escrow Agent shall not be charged with bound in any knowledge until such facts are communicated to way by any other agreement or understanding between the parties hereto, whether or not the Escrow Agent has knowledge thereof or consents thereto unless such consent is given in writing. .
3.3.4 The Escrow Agent's sole duties and responsibilities shall be to hold and disburse the Deposit accrued thereon in accordance with this Agreement.
3.3.5 The Escrow Agent shall not be required liable for any action taken or omitted by the Escrow Agent in good faith and believed by the Escrow Agent to institute be authorized or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such actionwithin its rights or powers conferred upon it by this Agreement, except with respect to matters arising out of for damage caused by the gross negligence or willful misconduct of the Escrow Agent. Seller and Purchaser shall at all times indemnify .
3.3.6 Upon the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out disbursement of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply Deposit accrued thereon in accordance with this Agreement, the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered relieved and released from any liability under this Agreement.
3.3.7 The Escrow Agent may resign at any time upon at least ten (10) business days prior written notice to dispose the parties hereto. If, prior to the effective date of such resignation, the parties hereto shall all have approved, in writing, a successor escrow agent, then upon the resignation of the Earn▇▇▇ ▇▇▇ey Escrow Agent, the Escrow Agent shall deliver the Deposit accrued thereon to such successor escrow agent. From and after such resignation and the delivery of the Deposit accrued thereon to such successor escrow agent, the Escrow Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement, all of which duties, responsibilities and obligations shall be performed by the appointed successor escrow agent. If for any reason the parties hereto shall not approve a successor escrow agent within such period, the Escrow Agent may bring any appropriate action or proceeding for leave to deposit the Deposit accrued thereon with a court of competent jurisdiction, pending the approval of a successor escrow agent, and upon such deposit the Escrow Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement.
3.3.8 Seller and Buyer hereby agree to, jointly and severally, indemnify, defend and hold the Escrow Agent harmless from and against any liabilities, damages, losses, costs or expenses incurred by, or claims or charges made against, the Escrow Agent (including attorneys' fees, expenses and court costs) (“Losses”) by reason of the Escrow Agent's acting or failing to act in connection with any of the matters contemplated by this Agreement or in carrying out the terms of this Agreement, except as provided for a result of the Escrow Agent's gross negligence, bad faith or willful misconduct.
3.3.9 Subject to the provisions of Section 3.3.9, in said paragraph without incurring any liability. In the event of that a dispute between Seller shall arise in connection with this Agreement, or as to the rights of any of the parties in and Purchaser which cannot be resolvedto, or the disposition of, the Deposit, the Escrow Agent shall have the option right to (w) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration or otherwise, or (x) deposit the Earn▇▇▇ ▇▇▇ey Deposit into a in an appropriate court of competent jurisdiction pending resolution of law, following which the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibilitythereby and thereafter be relieved and released from any liability or obligation under this Agreement, or (y) institute an action in interpleader or other similar action permitted by stakeholders in the State of New York, or (z) interplead any of the parties in any action or proceeding which may be brought to determine the rights of the parties to all or any part of the Deposit.
3.3.10 The Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained.
Appears in 1 contract
Escrow Agent. The Escrow Agent referred may become a party to above this Agreement ------------ at any time after the Escrow Agent is selected in accordance with this Agreement by providing written notice to such effect to each of the parties to this Agreement. The Escrow Agent shall neither be responsible for or under, nor chargeable with knowledge of, the terms and conditions of any other agreement, instrument or document in connection herewith other than the Senior Loan Documents and Subordinate Loan Documents and shall be Rich▇▇▇ ▇required to act in respect of the Cash Collateral only as provided in this Agreement. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment GroupThis Agreement sets forth all the obligations of the Escrow Agent with respect to any and all matters pertinent to the escrow contemplated hereunder. The Escrow Agent shall incur no liability in connection with the discharge of its obligations under this Agreement or otherwise in connection therewith, except such liability as may arise from the gross negligence or willful misconduct of the Escrow Agent. Borrower hereby agrees to indemnify Escrow Agent and hold Escrow Agent harmless from any loss, cost, liability or expense incurred by Escrow Agent as a result of this Agreement or the performance of Escrow Agent's obligations hereunder, except to the extent caused by Escrow Agent's gross negligence or willful misconduct. The Escrow Agent may consult with counsel of its choice and shall not be liable for any action taken or omitted to be taken by the Escrow Agent in accordance with the advice of such counsel. The Escrow Agent shall not be charged with bound by any knowledge until such facts are communicated to modification, cancellation or rescission of this Agreement unless in writing and signed by the Escrow Agent in writingAgent. The Each of the parties to this Agreement hereby covenants and agrees to execute and deliver any further documentation or amendments to this Agreement (provided that such amendments are not inconsistent with the provisions of this Agreement) reasonably requested by Escrow Agent shall not be required as a condition to institute or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except Escrow Agent acting with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibilityAgreement.
Appears in 1 contract
Sources: Four Party Agreement (Marriott Residence Inn Limited Partnership)
Escrow Agent. (a) Limitation of the Escrow Agent's Liability; Responsibilities of the Escrow Agent. The Escrow Agent's responsibility and liability under this Agreement shall be limited as follows:
(i) the Escrow Agent does not represent, warrant or guaranty to the holders of the Securities from time to time the performance of the Company; (ii) the Escrow Agent shall have no responsibility to the Company or the holders of the Securities or the Trustee from time to time as a consequence of performance or non-performance by the Escrow Agent hereunder, except for any gross negligence or willful misconduct of the Escrow Agent; (iii) the Company shall remain solely responsible for all aspects of the Company's business and conduct; and (iv) the Escrow Agent is not obligated to supervise, inspect or inform the Company or any third party of any matter referred to above. No implied covenants or obligations shall be inferred from this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by the provisions of any agreement beyond the specific terms hereof. Specifically and without limiting the foregoing, the Escrow Agent shall in no event have any liability in connection with its investment, reinvestment or liquidation, in good faith and in accordance with the terms hereof, of any funds or U.S. Government Securities held by it hereunder, including without limitation any liability for any delay not resulting from gross negligence or willful misconduct in such investment, reinvestment or liquidation, or for any loss of principal or income incident to any such delay. The Escrow Agent referred to above and its agents shall be Rich▇▇▇ ▇entitled to rely upon any judicial order or judgment, upon any written opinion of counsel or upon any certification, instruction, notice, or other writing delivered to it by the Company or the Trustee in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of service thereof. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment GroupThe Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. At any time the Escrow Agent may request in writing an instruction in writing from the Company, and may at its own option include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder; provided, however, that the Escrow Agent shall state in such request that it believes in good faith that such proposed course of action is consistent with another identified provision of this Agreement. The Escrow Agent shall not be charged liable to the Company for acting without the Company's consent in accordance with any knowledge until such facts are communicated a proposal on or after the date specified therein if (i) the specified date is at least two business days after the Company receives the Escrow Agent's request for instructions and its proposed course of action, and (ii) prior to so acting, the Escrow Agent has not received the written instructions requested from the Company. The Escrow Agent may act pursuant to the advice of counsel chosen by it with respect to any matter relating to this Agreement and (subject to clause (ii) of the first paragraph of this Section 4(a)) shall not be liable for any action taken or omitted in writingaccordance with such advice. The Escrow Agent may act through agents, attorneys, custodians and nominees and is not responsible for the actions of such agents, attorneys, custodians and nominees if chosen by it with due care. The Escrow Agent shall not be required called upon to institute advise any party as to selling or maintain retaining, or taking or refraining from taking any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except action with respect to matters arising out of the gross negligence to, any securities or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liabilityother property deposited hereunder. In the event of a dispute between Seller and Purchaser which cannot be resolvedany ambiguity in the provisions of this Agreement with respect to any funds or property deposited hereunder, the Escrow Agent shall be entitled to refuse to comply with any and all claims, demands or instructions with respect to such funds or property, and the Escrow Agent shall not be or become liable for its failure or refusal to comply with conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until either any conflicting or adverse claims or demands shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into been finally determined by a court of competent jurisdiction pending resolution of or settled by agreement between the deposition of said funds and conflicting claimants as evidenced in a writing, satisfactory to interplead Seller and Purchaser in respect thereofthe Escrow Agent, and upon depositing said funds, or the Escrow Agent shall bear no further responsibilityhave received security or an indemnity satisfactory to the Escrow Agent sufficient to save the Escrow Agent harmless from and against any and all loss, liability or expense which the Escrow Agent may incur by reason of its acting. The Escrow Agent may in addition elect in its sole option to commence an interpleader action or seek other judicial relief or orders as the Escrow Agent may deem necessary. No provision of this Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.
Appears in 1 contract
Sources: Escrow Agreement (RCN Corp /De/)
Escrow Agent. The Escrow Agent referred to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Group. 5.1 The Escrow Agent shall not in any way be charged with bound or affected by a notice of modification or cancellation of this Escrow Agreement unless notice thereof is given to the Escrow Agent by both Seller and Buyer, nor shall the Escrow Agent be bound by any knowledge until such facts are communicated modification of its obligations hereunder unless the same shall be consented to by the Escrow Agent in writing. The Escrow Agent shall be entitled to rely upon any judgment, certification, demand or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any facts stated therein, the propriety or validity of the service thereof, or the jurisdiction issuing any judgment.
5.2 The Escrow Agent shall not be under any duty to give the property held by it hereunder any greater care than it gives its own similar property.
5.3 The Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine, and it may assume that any person purporting to give any notice or make any statement in connection with the provisions hereof has been duly authorized to do so.
5.4 The Escrow Agent may act in reliance upon advice of counsel in reference to any matter connected herewith, and shall not be liable for any mistake of fact or error of judgment, or for any act or omission of any kind except to the extent that such act or omission constitutes willful misconduct, gross negligence or fraud.
5.5 The Escrow Agent shall not have any responsibility for the payment of taxes except with funds furnished to the Escrow Agent for that purpose.
5.6 This Escrow Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent hereto. Except as otherwise expressly provided herein, the Escrow Agent shall not refer to, and shall not be bound by, the provisions of any other agreement.
5.7 Except with respect to claims based upon the Escrow Agent's willful misconduct, gross negligence or fraud, Buyer shall indemnify and hold harmless the Escrow Agent from any claims made against the Escrow Agent by Seller arising out of or relating to this Escrow Agreement, and Seller shall indemnify and hold the Escrow Agent harmless from any claims made against the Escrow Agent by Buyer arising out of or relating to this Escrow Agreement. Buyer and Seller jointly and severally shall indemnify and hold the Escrow Agent harmless from any claim made by any third party arising out of or relating to this Escrow Agreement, such indemnification to include all costs and expenses incurred by the Escrow Agent, including reasonable attorneys' fees.
5.8 The Escrow Agent shall not be required to institute or maintain defend any litigation action involving any matters referred to herein or which affect it or its duties or liability hereunder, unless indemnified or until requested to his satisfaction for his counsel do so by any party to this Escrow Agreement and then only upon receiving full indemnity, in character satisfactory to the Escrow Agent, against any and all claims, liabilities and expenses, including reasonable attorneys' fees, costsin relation thereto.
5.9 Upon termination of this Escrow Agreement, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actionsmay request from Buyer and Seller such additional assurances, proceedingscertificates, claims or demands arising out satisfactions, releases and/or other documents as it may deem appropriate to evidence the termination of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Agreement.
5.10 The Escrow Agent shall be empowered entitled to dispose receive a fee for serving as the Escrow Agent hereunder equal to $500 per year and $25.00 per transaction, to be shared equally by Buyer and Seller.
5.11 Buyer and Seller acknowledge that it may be necessary, for federal income tax or other purposes, for the Escrow Agent to know the employer identification numbers ("EIN") of the Earn▇▇▇ Buyer and Seller. Buyer represents that its EIN is 63-1▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibility. ▇eller represents that its EIN is 72-1▇▇-▇▇▇▇.
Appears in 1 contract
Escrow Agent. 4.1 In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
4.2 The Company and the Stockholders, jointly and severally, covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors and assigns from and against all loss, costs, charges, suits, demands, claims, damages, and expenses that the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer, or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent’s compliance in good faith with the terms hereof.
4.3 In case proceedings should hereafter be taken in any court respecting the Escrow Documents, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings.
4.4 The Escrow Agent referred will have no responsibility in respect of loss of the Escrow Documents except the duty to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Groupexercise such care in the safekeeping thereof as it would exercise if the Escrow Documents belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel.
4.5 The Escrow Agent will not be bound in any way by any contract between the other parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Escrow Documents as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Escrow Documents or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential for their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent.
4.6 In the event that the Escrow Documents are attached, garnished, or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment, or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey, and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, orders, judgments, or decrees, it will not be liable to any of the parties hereto or to any other person, form or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments, or decrees may be subsequently reversed, modified, annulled, set aside, or vacated.
4.7 Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association, or corporation. It will, however, obey the order, judgment, or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgments or decrees and in case of such compliance, it shall not be charged with liable by reason thereof to any knowledge of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside, or vacated.
4.8 If the Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Escrow Documents until such facts are communicated the lawful determination of the issue between the parties hereto.
4.9 If written notice of protest is made by any of the Stockholders or the Company to the Escrow Agent in writing. The Escrow Agent shall not be required to institute or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify action contemplated by the Escrow Agent against all actionsunder this Agreement, proceedingsand such notice sets out reasons for such protest, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered may continue to dispose of hold the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In Escrow Documents until the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have right to the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into documents is legally determined by a court of competent jurisdiction pending resolution or otherwise.
4.10 The Escrow Agent may resign as Escrow Agent by giving not less than 30 days’ notice thereof to all of the deposition Stockholders and the Company. All of said the Stockholders and the Company may terminate the Escrow Agent by giving not less than 30 days’ notice to the Escrow Agent. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is 30 days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, all of the Stockholders, and the Company may agree. All indemnities granted to the Escrow Agent herein will survive the termination of this Agreement or the termination or resignation of the Escrow Agent.
4.11 Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given jointly by the Company and all of the Stockholders.
4.12 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between any of the Stockholders, on the one hand, and the Company, on the other hand, this Agreement or any matters arising hereto, the Escrow Agent may in its sole discretion deliver and interplead the Escrow Documents and all funds held in the Escrow Account into court and such delivery and interpleading will be an effective discharge to interplead Seller the Escrow Agent.
4.13 It is understood that in addition to acting as the Escrow Agent hereunder, the Escrow Agent is also acting as attorney for the Company and Purchaser not for any other party to this Agreement and the parties have requested that the Escrow Agent act in this capacity.
4.14 The Company and each of the Stockholders acknowledge that they have been advised to consult their own legal advisors with respect to this Agreement, the applicable hold periods and resale restrictions regarding the Escrow Shares and they covenant and agree that they are solely responsible for compliance with all applicable restrictions in respect thereof, and upon depositing said funds, of the Escrow Agent shall bear no further responsibilityShares.
Appears in 1 contract
Escrow Agent. The Escrow Agent referred to above shall not be liable for any action taken or omitted by it in good faith and its liability hereunder shall be Rich▇▇▇ ▇limited to liability for gross negligence or willful misconduct on its part. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment GroupThe Company and the Purchasers agree to save harmless, and the Company agrees to indemnify and defend, the Escrow Agent for, from and against their respective share of any loss, damage, liability, judgment, cost and expense whatsoever, by reason of, or on account of, any misrepresentation made to it or its status or activities as Escrow Agent under this Agreement except for any loss, damage, liability, judgment, cost or expense resulting from gross negligence or willful misconduct on the part of the Escrow Agent. The Escrow Agent shall not be charged responsible for any failure or inability of any of the parties to perform or comply with any knowledge until such facts are communicated to the provisions of this Agreement, or the agreements delivered in connection herewith. In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely in writing. The Escrow Agent good faith upon any document (including facsimile transmitted copies of documents), instrument or signature believed by it in good faith to be genuine and to be signed by any party hereto or an authorized officer or agent thereof, and shall not be required to institute investigate the truth or maintain accuracy of any litigation unless indemnified statement contained in any such document or instrument. The Escrow Agent may assume in good faith that any person purporting to his satisfaction for his give any notice in accordance with the provisions hereof has been duly authorized to do so. Each party hereto acknowledges that (a) the Escrow Agent is not acting as legal counsel fees, costs, disbursements and all other expenses and liabilities to which he may, such party in his judgment, be subjected any manner or respect in connection with the transactions contemplated by this Agreement, and (b) the Escrow Agent is serving as an accommodation to the parties hereto. It is understood and further agreed that the Escrow Agent shall:
(a) be under no duty to enforce payment of any subscription that is to be paid to and held by it hereunder;
(b) promptly notify the Purchasers and the Company of any discrepancy between the amounts set forth on any statement delivered by the Purchasers and/or the Company and the sum or sums delivered to it therewith;
(c) be under no duty to accept funds, checks, drafts or instruments for the payment of money from anyone other than the Company or the Purchasers, or to give any receipt therefor except to the Company or the Purchasers, with a copy in each case to the Company;
(d) be protected in acting upon any notice, request, certificate, approval, consent or other paper reasonably believed by it to be genuine and to be signed by the proper party or parties (including, but not limited to, copies of documents transmitted by facsimile);
(e) be permitted to consult with counsel of its choice, and shall not be liable for any action taken, suffered, or omitted by it in accordance with the advice of such actioncounsel; provided, except however, that nothing in this subsection (e), nor any action taken by the Escrow Agent, or suffered or omitted by it in accordance with respect to matters arising out the advice of any counsel, shall relieve the Escrow Agent from liability for any claims that are occasioned by its gross negligence or willful misconduct misconduct;
(f) not be bound by any modification, amendment, termination, cancellation, or rescission of Escrow Agent. Seller this Agreement, unless the same shall be in writing and Purchaser signed by it;
(g) be entitled to refrain from taking any action other than to keep all property held in escrow if it (i) shall at all times indemnify the Escrow Agent against all actionsbe uncertain concerning its duties or rights hereunder, proceedings, or (ii) shall have received claims or demands arising out from any party, or (iii) shall have received instructions from the Purchasers and/or the Company that, in the Escrow Agent's opinion, are in conflict with any of the provisions of this transactionAgreement, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent until it shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into received a final judgment by a court of competent jurisdiction pending resolution jurisdiction;
(h) have no liability for following the instructions herein or expressly provided for herein, or the written instructions given jointly by the Purchasers and/or the Company; and/or
(i) have the right, at any time, to resign hereunder by giving written notice of its resignation to all other parties hereto at least three (3) business days prior to the deposition of said funds and date specified for such resignation to interplead Seller and Purchaser in respect thereoftake effect, and upon depositing said funds, the effective date of such resignation all cash and other payments and all other property then held by the Escrow Agent hereunder shall bear be delivered by it to such person as may be designated in writing by the other parties executing this Agreement, whereupon the Escrow Agent's obligations hereunder shall cease and terminate. If no further responsibilitysuch person has been designated by such date, all obligations of the Escrow Agent hereunder shall, nevertheless, cease and terminate. The Escrow Agent's sole responsibility thereafter shall be to keep safely all property then held by it and to deliver the same to a person designated by the other parties executing this Agreement or in accordance with the directions of a final order or judgment of a court of competent jurisdiction.
Appears in 1 contract
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by written instructions given by a Company Stockholder after Parent has advised Escrow Agent in writing that the ASR 135 restriction period has expired, the Escrow Agent shall not sell, transfer or otherwise dispose of in any manner all or any portion of the Escrow Fund, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be determined solely by this Agreement, and the Escrow Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. The Escrow Agent referred shall neither be responsible for or under, nor chargeable with knowledge of the terms and conditions of, any other agreement, instrument or document in connection herewith, including but not limited to above the Merger Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be Rich▇▇▇ ▇entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by any party hereto or an authorized officer or agent thereof, and shall not be required to investigate the truth or accuracy of any statement contained in any such document or instrument. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment GroupThe Escrow Agent may assume that any person purporting to give any notice in accordance with the provisions of this Agreement has been duly authorized to do so. The Escrow Agent shall have no responsibility for the contents of any such writing contemplated herein and may conclusively rely without any liability upon the contents thereof.
(d) The Escrow Agent shall not be charged with liable for any knowledge until such facts are communicated error of judgment, or any action taken, suffered or omitted to be taken, hereunder except in the Escrow Agent in writingcase of its gross negligence, bad faith or willful misconduct. The Escrow Agent may consult with counsel of its own choice and shall not be required have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel.
(e) The Escrow Agent shall have no duty as to institute the collection or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out protection of the gross negligence Escrow Fund or willful misconduct income thereon, nor as to the preservation of Escrow Agent. Seller and Purchaser shall at all times indemnify any rights pertaining thereto, beyond the Escrow Agent against all actions, proceedings, claims or demands arising out safe custody of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, any such property actually in its possession.
(f) The Escrow Agent shall be empowered to dispose paid its fees and shall be reimbursed upon request for all expenses, disbursements and advances, including reasonable fees of outside counsel, if any, incurred or made by it in connection with the preparation of this Agreement and the carrying out of its duties under this Agreement. All such fees and expenses shall be the responsibility of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In Parent.
(g) To the event of a dispute between Seller and Purchaser which cannot be resolved, extent that the Escrow Agent shall have becomes liable for the option to deposit payment of Taxes, including withholding Taxes, in respect of income derived from the Earn▇▇▇ ▇▇▇ey Deposit into a court investment of competent jurisdiction pending resolution funds held hereunder and/or possession of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibility.Shares or any payment
Appears in 1 contract
Escrow Agent. The Escrow Agent referred to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Group. 5.1 The Escrow Agent shall not in any way be charged with bound or affected by a notice of modification or cancellation of this Escrow Agreement unless notice thereof is given to the Escrow Agent by both Seller and Buyer, nor shall the Escrow Agent be bound by any knowledge until such facts are communicated modification of its obligations hereunder unless the same shall be consented to by the Escrow Agent in writing. The Escrow Agent shall be entitled to rely upon any judgment, certification, demand or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any facts stated therein, the propriety or validity of the service thereof, or the jurisdiction issuing any judgment.
5.2 The Escrow Agent shall not be under any duty to give the property held by it hereunder any greater care than it gives its own similar property.
5.3 The Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine, and it may assume that any person purporting to give any notice or make any statement in connection with the provisions hereof has been duly authorized to do so.
5.4 The Escrow Agent may act in reliance upon advice of counsel in reference to any matter connected herewith, and shall not be liable for any mistake of fact or error of judgment, or for any act or omission of any kind except to the extent that such act or omission constitutes willful misconduct, gross negligence or fraud.
5.5 The Escrow Agent shall not have any responsibility for the payment of taxes except with funds furnished to the Escrow Agent for that purpose.
5.6 This Escrow Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent hereto. Except as otherwise expressly provided herein, the Escrow Agent shall not refer to, and shall not be bound by, the provisions of any other agreement.
5.7 Except with respect to claims based upon the Escrow Agent's willful misconduct, gross negligence or fraud, Buyer shall indemnify and hold harmless the Escrow Agent from any claims made against the Escrow Agent by Seller arising out of or relating to this Escrow Agreement, and Seller shall indemnify and hold the Escrow Agent harmless from any claims made against the Escrow Agent by Buyer arising out of or relating to this Escrow Agreement. Buyer and Seller jointly and severally shall indemnify and hold the Escrow Agent harmless from any claim made by any third party arising out of or relating to this Escrow Agreement, such indemnification to include all costs and expenses incurred by the Escrow Agent, including reasonable attorneys' fees.
5.8 The Escrow Agent shall not be required to institute or maintain defend any litigation action involving any matters referred to herein or which affect it or its duties or liability hereunder, unless indemnified or until requested to his satisfaction for his counsel do so by any party to this Escrow Agreement and then only upon receiving full indemnity, in character satisfactory to the Escrow Agent, against any and all claims, liabilities and expenses, including reasonable attorneys' fees, costsin relation thereto.
5.9 Upon termination of this Escrow Agreement, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actionsmay request from Buyer and Seller such additional assurances, proceedingscertificates, claims or demands arising out satisfactions, releases and/or other documents as it may deem appropriate to evidence the termination of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Agreement.
5.10 The Escrow Agent shall be empowered entitled to dispose receive a fee for serving as the Escrow Agent hereunder equal to $250 per year and $25.00 per transaction, to be shared equally by Buyer and Seller.
5.11 Buyer and Seller acknowledge that it may be necessary, for federal income tax or other purposes, for the Escrow Agent to know the employer identification numbers ("EIN") of the Earn▇▇▇ Buyer and Seller. Buyer represents that its EIN is 63-1▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibility. ▇eller represents that its EIN is 72-1▇▇-▇▇▇▇.
Appears in 1 contract
Sources: Tax Indemnity Escrow Agreement (Masada Security Holdings Inc)
Escrow Agent. Section 3.01 The Escrow Agent’s duties hereunder may be altered, amended, modified or revoked only by a writing signed by the Company, the Investor Representative and the Escrow Agent.
Section 3.02 The Escrow Agent referred to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Groupobligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be charged with personally liable for any knowledge until such facts are communicated to act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting in writinggood faith and in the absence of gross negligence, fraud or willful misconduct, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s attorneys-at-law shall be conclusive evidence of such good faith, in the absence of gross negligence, fraud or willful misconduct.
Section 3.03 The Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation, excepting only orders or process of courts of law and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, the Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
Section 3.04 The Escrow Agent shall not be required to institute or maintain liable in any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out on account of the identity, authorization or rights of the parties executing or delivering or purporting to execute or deliver any documents or papers deposited or called for thereunder in the absence of gross negligence negligence, fraud or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, misconduct.
Section 3.05 The Escrow Agent shall be empowered entitled to dispose employ such legal counsel and other experts as the Escrow Agent may deem necessary to properly advise the Escrow Agent in connection with the Escrow Agent’s duties hereunder, may rely upon the advice of such counsel, and may pay such counsel reasonable compensation therefor which shall be paid by the Earn▇▇▇ ▇▇▇ey Deposit Escrow Agent.
Section 3.06 The Escrow Agent’s responsibilities as provided for in said paragraph without incurring any liabilityescrow agent hereunder shall terminate if the Escrow Agent shall resign by giving written notice to the Company and the Investors. In the event of any such resignation, the Investors and the Company shall appoint a dispute between Seller successor Escrow Agent and Purchaser which cannot be resolved, the Escrow Agent shall deliver to such successor Escrow Agent any escrow funds and other documents held by the Escrow Agent.
Section 3.07 If the Escrow Agent reasonably requires other or further instruments in connection with this Escrow Agreement or obligations in respect hereto, the necessary parties hereto shall use its best efforts to join in furnishing such instruments.
Section 3.08 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the Escrow Shares, the Escrow Materials or the Disbursement Instructions held or reeived by the Escrow Agent hereunder, the Escrow Agent is authorized and directed in the Escrow Agent’s sole discretion (1) to retain in the Escrow Agent’s possession without liability to anyone all or any part of said documents or the Escrow Shares until such disputes shall have been settled either by mutual written agreement of the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into parties concerned by a final order, decree or judgment or a court of competent jurisdiction pending resolution of after the deposition of said funds time for appeal has expired and to interplead Seller and Purchaser in respect thereofno appeal has been perfected, and upon depositing said funds, but the Escrow Agent shall bear be under no further responsibilityduty whatsoever to institute or defend any such proceedings or (2) to deliver the Escrow Shares and any other property and documents held by the Escrow Agent hereunder to a state or Federal court having competent subject matter jurisdiction and located in the City of New York, Borough of Manhattan, in accordance with the applicable procedure therefor.
Section 3.09 The Company agrees to indemnify and hold harmless the Escrow Agent and its partners, employees, agents and representatives from any and all claims, liabilities, costs or expenses in any way arising from or relating to the duties or performance of the Escrow Agent hereunder or the transactions contemplated hereby other than any such claim, liability, cost or expense to the extent the same shall have been determined by final, unappealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, fraud or willful misconduct of the Escrow Agent.
Appears in 1 contract
Sources: Make Good Escrow and Pledge Agreement (China Carbon Graphite Group, Inc.)
Escrow Agent. Section 4.1 The Escrow Agent’s duties hereunder may be altered, amended, modified or revoked only by a writing signed by the Company, the Principal Stockholder, the Purchaser Representative and the Escrow Agent.
Section 4.2 The Escrow Agent referred to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Groupobligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be charged with personally liable for any knowledge until such facts are communicated to act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting in writinggood faith and in the absence of gross negligence, fraud or willful misconduct, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s attorneys-at-law shall be conclusive evidence of such good faith, in the absence of gross negligence, fraud or willful misconduct.
Section 4.3 The Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation, excepting only orders or process of courts of law and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, the Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
Section 4.4 The Escrow Agent shall not be required to institute or maintain liable in any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out on account of the identity, authorization or rights of the parties executing or delivering or purporting to execute or deliver any documents or papers deposited or called for thereunder in the absence of gross negligence negligence, fraud or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, misconduct.
Section 4.5 The Escrow Agent shall be empowered entitled to dispose employ such legal counsel and other experts as the Escrow Agent may deem necessary to properly advise the Escrow Agent in connection with the Escrow Agent’s duties hereunder, may rely upon the advice of such counsel, and may pay such counsel reasonable compensation therefor which shall be paid by the Escrow Agent. The Escrow Agent has acted as legal counsel for the Company. The Company and the Purchasers consent to the Escrow Agent in such capacity as legal counsel for the Company and waive any claim that such representation represents a conflict of interest on the part of the Earn▇▇▇ ▇▇▇ey Deposit Escrow Agent. The Company and the Purchasers understand that the Escrow Agent is relying explicitly on the foregoing provision in entering into this Agreement.
Section 4.6 The Escrow Agent’s responsibilities as provided for in said paragraph without incurring any liabilityescrow agent hereunder shall terminate if the Escrow Agent shall resign by giving 45 days’ prior written notice to the Company and the Purchasers. In the event of any such resignation, the Purchasers and the Company shall appoint a dispute between Seller successor Escrow Agent and Purchaser which cannot be resolved, the Escrow Agent shall deliver to such successor Escrow Agent any escrow funds and other documents held by the Escrow Agent.
Section 4.7 If the Escrow Agent reasonably requires other or further instruments in connection with this Agreement or obligations in respect hereto, the necessary parties hereto shall use its best efforts to join in furnishing such instruments.
Section 4.8 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the documents or the Escrow Shares held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed in the Escrow Agent’s sole discretion (1) to retain in the Escrow Agent’s possession without liability to anyone all or any part of said documents or the Escrow Shares until such disputes shall have been settled either by mutual written agreement of the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into parties concerned or by a final order, decree or judgment or a court of competent jurisdiction pending resolution of after the deposition of said funds time for appeal has expired and to interplead Seller and Purchaser in respect thereofno appeal has been perfected, and upon depositing said funds, but the Escrow Agent shall bear be under no further responsibilityduty whatsoever to institute or defend any such proceedings or (2) to deliver the Escrow Shares and any other property and documents held by the Escrow Agent hereunder to a state or Federal court having competent subject matter jurisdiction and located in the City of New York, Borough of Manhattan, in accordance with the applicable procedure therefor.
Section 4.9 The Company agrees to indemnify and hold harmless the Escrow Agent and its partners, employees, agents and representatives from any and all claims, liabilities, costs or expenses in any way arising from or relating to the duties or performance of the Escrow Agent hereunder or the transactions contemplated hereby other than any such claim, liability, cost or expense to the extent the same shall have been determined by final, unappealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, fraud or willful misconduct of the Escrow Agent.
Appears in 1 contract
Sources: Securities Purchase Agreement (China Internet Cafe Holdings Group, Inc.)
Escrow Agent. The Escrow Agent referred It is understood and agreed by the parties to above shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Group. The Escrow Agent this agreement as follows:-
8.1 the escrow agent is not and shall not be charged deemed to be a trustee for any party for any purpose and is merely acting as a depository and in a ministerial capacity hereunder with the limited duties prescribed by this agreement;
8.2 the escrow agent does not have and shall not be deemed to have any responsibility in respect of any instruction, certificate or notice delivered to it or of the escrow shares or any related escrow property other than faithfully to carry out the obligations undertaken in this agreement and to follow the directions in such instruction or notice provided in accordance with the terms of this agreement;
8.3 the escrow agent is not and shall not be deemed to be liable for any action taken or omitted by it in good faith and may rely upon, and act in accordance with, the advice of its legal advisers without liability on its part for any action taken or omitted in accordance with such advice. In any event, its liability hereunder shall be limited to liability for gross negligence, wilful misconduct or bad faith on its part;
8.4 the escrow agent may conclusively rely upon and act in accordance with any knowledge until such facts are communicated certificate, instruction, notice, letter, telegram, cablegram facsimile or other written instrument believed by it to be genuine and to have been signed by the proper party or parties;
8.5 FSAH agrees:-
8.5.1 to pay the escrow agent's reasonable fees and to reimburse it for its reasonable expenses including reasonable attorney's fees incurred in connection with duties hereunder; and
8.5.2 to hold harmless, indemnify and defend the escrow agent for, from and against any loss, damage, liability, judgment, cost and expense whatsoever, including reasonable attorney's fees, suffered or incurred by it by reason of, or on account of, any misrepresentation made to it or its status or activities as escrow agent under this agreement except for any loss, damage, liability, judgment, cost or expense resulting from gross negligence, wilful misconduct or bad faith on the part of the escrow agent;
8.6 the escrow agent shall not be required to defend any legal proceeding which may be instituted against it in respect of the subject matter of this agreement unless requested to do so by a party hereto and indemnified to the Escrow Agent in writingescrow agent's satisfaction against the cost and expense of such defence by the party requesting such defence. If any such legal proceeding is instituted against it, the escrow agent agrees promptly to give notice of such proceeding to the sellers and the purchaser. The Escrow Agent escrow agent shall not be required to institute legal proceedings of any kind;
8.7 the escrow agent shall not, by act, delay, omission or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgmentotherwise, be subjected deemed to have waived any right or remedy it may have either under this agreement or generally, unless such waiver be in connection with writing, and no waiver shall be valid unless it is in writing, signed by the escrow agent, and only to the extent expressly therein set forth. A waiver by the escrow agent under the term of this agreement shall not be construed as a bar to, or waiver of, the same or any other such actionright or remedy which it would otherwise have on any other occasion;
8.8 the escrow agent may resign as such by giving 30 days written notice thereof to the sellers, except with respect the purchaser and FSAH. Within 20 days after receipt of such notice, the sellers, FSAH and the purchaser shall furnish to matters arising out the escrow agent written instructions for the release of the gross negligence escrow property to a substitute escrow agent which, (whether designated by written instructions from the sellers and the purchaser jointly or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify in the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into absence thereof by instructions from a court of competent jurisdiction pending resolution to the escrow agent), shall be a bank or trust company or firm of auditors or attorneys organised and doing business under the laws of the deposition Republic of said funds South Africa. Such substitute escrow agent shall thereafter hold any escrow shares and any related escrow property received by it pursuant to interplead Seller the terms of this agreement and Purchaser otherwise act hereunder as if it were the escrow agent originally named herein;
8.9 The escrow agent's duties and responsibilities hereunder shall terminate upon the release of all shares and escrow property then held in respect thereof, and escrow according to such written instruction or upon depositing said funds, Escrow Agent such delivery as herein provided. This agreement shall bear no further responsibilitynot otherwise be assignable by the escrow agent without the prior written consent of the parties hereto.
Appears in 1 contract
Sources: Sale of Business and Shares Agreement (First South Africa Corp LTD)
Escrow Agent. The Escrow Agent referred to above (i) Title Company shall be Rich▇▇▇ ▇. ▇▇accept the ▇▇▇▇▇▇▇ Money with the understanding of the parties that Title Company Agent is not a party to this Agreement except to the extent of its specific responsibilities hereunder, and does not assume or have any liability for the performance or non-performance of Buyer or Seller hereunder to either of them.
(ii) The Title Company shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to the Title Company without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.
(iii) The Title Company shall not be bound in any way by any other agreement or understanding between the parties hereto, whether or not the Title Company has knowledge thereof or consents thereto unless such consent is given in writing.
(iv) The Title Company’s sole duties and responsibilities under as escrow agent for the ▇▇▇▇▇▇▇ Colonial Investment Group. Money shall be to hold and disburse the ▇▇▇▇▇▇▇ Money in accordance with this Agreement.
(v) The Escrow Agent Title Company shall not be charged with liable for any knowledge until such facts are communicated action taken or omitted by the Title Company in good faith and believed by the Title Company to the Escrow Agent in writing. The Escrow Agent shall not be required to institute authorized or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such actionwithin its rights or powers conferred upon it by this Agreement, except with respect to matters arising out for damage caused by the fraud or gross negligence of the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify Title Company.
(vi) Upon the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out disbursement of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇▇▇▇▇ Money in accordance with this Agreement, the Title Company shall be relieved and released from any liability under this Agreement.
(vii) The Title Company may resign at any time upon at least ten (10) days prior written notice to the parties hereto. If, prior to the effective date of such resignation, the parties hereto shall all have approved, in writing, a successor escrow agent, then upon the resignation of the Title Company, the Title Company shall deliver the ▇▇▇ey Deposit as provided ▇▇▇▇ Money to such successor escrow agent. From and after such resignation and the delivery of the ▇▇▇▇▇▇▇ Money to such successor escrow agent, the Title Company shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement, all of which duties, responsibilities and obligations shall be performed by the appointed successor escrow agent. If for in said paragraph without incurring any liability. In reason the event of parties hereto shall not approve a dispute between Seller and Purchaser which cannot be resolvedsuccessor escrow agent within such period, Escrow Agent shall have the option Title Company may bring any appropriate action or proceeding for leave to deposit the Earn▇▇▇▇▇▇▇ ▇▇▇ey Deposit into Money with a court of competent jurisdiction jurisdiction, pending resolution the approval of the deposition of said funds and to interplead Seller and Purchaser in respect thereofa successor escrow agent, and upon depositing said fundssuch deposit the Title Company shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement.
(viii) Seller and Buyer hereby agree to, jointly and severally, indemnify, defend and hold the Escrow Agent harmless from and against any liabilities, damages, losses, costs or expenses incurred by, or claims or charges made against, the Title Company (including reasonably attorneys’ fees, expenses and court costs) by reason of the Title Company’s acting or failing to act in connection with any of the matters contemplated by this Agreement in its capacity as escrow agent for the ▇▇▇▇▇▇▇ Money or in carrying out the terms of this Agreement, except as a result of the Title Company’s fraud or gross negligence.
(ix) In the event that a dispute shall bear no further responsibilityarise in connection with this Agreement, or as to the rights of any of the parties in and to, or the disposition of, the ▇▇▇▇▇▇▇ Money the Title Company shall have the right to (w) hold and retain all or any part of the ▇▇▇▇▇▇▇ Money until such dispute is settled or finally determined by litigation, arbitration or otherwise, or (x) deposit the ▇▇▇▇▇▇▇ Money in an appropriate court of law, following which the Title Company shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement, or (y) institute an action in interpleader or other similar action permitted by stakeholders in the State in which the Real Property is located, or (z) interplead any of the parties in any action or proceeding which may be brought to determine the rights of the parties to all or any part of the ▇▇▇▇▇▇▇ Money.
(x) The Title Company shall not have any liability or obligation for loss of all or any portion of the ▇▇▇▇▇▇▇ Money by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained. The parties hereto have executed this Agreement as of the date set forth in the first paragraph of this Agreement. SELLER: NK-LCB PROPERTY LLC, a Delaware limited liability company By: NK-LCB Property Manager LLC, its managing member By: Name: Title: ▇▇▇▇▇▇▇ SEGAIR L.P., a Delaware limited partnership By: ▇▇▇▇▇▇▇ Segair GP LLC, its general partner By MLP Manager Corp., its manager By: Name: Title: BUYER: ▇▇▇▇▇ REIT EL SEGUNDO LP, a Delaware limited partnership By: ▇▇▇▇▇ REIT El Segundo GP LLC, its general partner By: Name: Title:
Appears in 1 contract
Sources: Purchase Agreement (Hines Real Estate Investment Trust Inc)
Escrow Agent. The parties agree to execute the Escrow Agent’s standard form of Escrow Agreement and share equally the costs of escrow. The Escrow Agent referred to above Agent’s form of escrow agreement shall be Rich▇▇▇ ▇. ▇▇▇govern the terms of the E▇▇▇▇▇▇ Money deposit. Any execution of this Agreement by the Escrow Agent is solely for purposes of evidencing the acknowledgment by said Escrow Agent of the receipt by it of the E▇▇▇▇▇▇ Colonial Investment GroupMoney specified in Section 3 hereinabove. The Both Purchaser and Seller acknowledge that the Escrow Agent is acting hereunder as a depository only to the parties, and Purchaser and Seller, jointly and severally, do hereby agree to indemnify and hold harmless the Escrow Agent of and from any and all liabilities, costs, expenses and claims, of any nature whatsoever, by reason of or arising out of any act as Escrow Agent hereunder, except in the case of Escrow Agent’s gross negligence or willful misconduct. All parties agree that the Escrow Agent shall not be charged liable to any party or person whomsoever for (i) the sufficiency, correctness, genuineness or validity of any instrument deposited with it or any knowledge until notice or demand given to it or for the form of execution of such facts are communicated instrument, notice or demand, or for the identification, authority or rights of any person executing, depositing or giving the same or for the terms and conditions of any instrument, pursuant to which the parties may act; (ii) acting upon any signature, notice, demand, request, waiver, consent, receipt or other paper or document believed by Escrow Agent in writing. The to be genuine and Escrow Agent shall not be required may assume that any person purporting to institute give it any notice on behalf of any party in accordance with the provisions hereof has been duly authorized to do so, or maintain any litigation unless indemnified (iii) otherwise acting or failing to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, act under this Section except in his judgment, be subjected in connection with such action, except with respect to matters arising out the case of the Escrow Agent’s gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibilitymisconduct.
Appears in 1 contract
Sources: Commercial Sales Contract (Elevate.Money REIT I, Inc.)
Escrow Agent. The 4.3.1. Purchaser and Seller acknowledge that Escrow Agent referred will act solely as a stakeholder at their request and for their convenience and as such shall not be deemed to above be the agent of either of the parties.
4.3.2. Escrow Agent undertakes to perform only such duties as are expressly set forth herein, and no implied duties or obligations will be read into this Agreement against Escrow Agent. Escrow Agent will not have any duties hereunder except those specifically set forth herein.
4.3.3. Escrow Agent may act in reliance upon any writing or instrument or signature which it believes in good faith to be genuine, may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument and may assume that any person purporting to give any writing, notice, advice or instructions in connection with the provisions hereof has been duly authorized to do so.
4.3.4. Escrow Agent will not be liable, in any manner, for the validity, sufficiency or correctness, as to form, manner and execution, of any instrument deposited in this escrow or with respect to the identity, authority or right of any person executing the same, and its duties hereunder shall be Rich▇▇▇ ▇limited to the safekeeping of such moneys, instruments or other documents received by it as escrow holder and for the disposition of same in accordance with the written instrument accepted by it in the escrow.
4.3.5. ▇▇Escrow Agent may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. Escrow Agent will otherwise not be liable for any mistake of fact or error of judgment or any acts or omissions of any kind, unless caused by its willful misconduct or gross negligence.
4.3.6. Escrow Agent may resign upon ten (10) days written notice to the parties to this Agreement. If a successor Escrow Agent is not appointed within such ten (10) day period, Escrow Agent may petition a court of competent jurisdiction to name a successor.
4.3.7. Escrow Agent may, in the event of doubt as to its duties or liabilities under the provisions of this escrow, in its sole discretion, continue to hold the monies which are the subject of this escrow until all interested persons mutually agree to the disbursement thereof, and may, in its sole discretion, file an action in interpleader to resolve such disagreement. Escrow Agent will be indemnified for all costs, including reasonable attorneys’ fees, in trial and appellate courts, in connection with the aforesaid interpleader action.
4.3.8. Escrow Agent will invest the ▇▇▇▇▇▇▇ Money as directed by Purchaser, and in the absence of such direction will hold the ▇▇▇▇▇▇▇ Colonial Investment Group. The Escrow Agent shall not be charged with any knowledge until such facts are communicated Money in a non-interest bearing account insured to the Escrow Agent in writingmaximum legal limit by the Federal Deposit Insurance Corporation.
4.3.9. The Escrow Agent shall not be required Notwithstanding any term or condition contained herein to institute or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he maythe contrary, in his judgment, be subjected in connection with such action, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser as to the disposition of the ▇▇▇▇▇▇▇ Money which canis not be resolvedresolved within twenty (20) days, Escrow Agent shall have the option to file an interpleader action and deposit the Earn▇▇▇▇▇▇▇ ▇▇▇ey Deposit into Money with a court of competent jurisdiction pending resolution applicable jurisdiction.
4.3.10. Escrow Agent is acting as such as an accommodation and will earn no compensation for services rendered as Escrow Agent under this Agreement.
4.3.11. Purchaser and Seller agree to absolve, exonerate, hold harmless, indemnify and defend Escrow Agent from any and all claims, liabilities, losses, actions, suits or proceedings, at law or in equity, or any other expense, fees or charges of the deposition of said funds any character or nature, including reasonable attorneys’ fees in trial and to interplead Seller and Purchaser in respect thereofappellate courts, and upon depositing said fundsthe cost of defending any action, suit or proceeding or of resisting or the settlement of any claim, which it may incur or with which it may be threatened by reason of its acting as Escrow Agent shall bear no further responsibilityhereunder. This indemnity will not apply in any cause that arises from the willful misconduct or gross negligence of Escrow Agent, its officers, agents or employees, or a willful breach of Escrow Agent’s duties as set forth above.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wells Real Estate Fund Vi L P)
Escrow Agent. The (a) Natural Health and Woodburn and LaCore acknowledge and agree that the Escrow Agent referred to above shall be Rich(i) ▇▇▇▇▇ ▇▇ obli▇▇▇▇▇ only for the performance of such duties as are specifically 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 it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof; and (iv) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Escrow Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent.
(b) Neither the Escrow Agent nor any of its partners or employees shall be liable to anyone for any action taken or omitted to be taken by it or any of partners or employees hereunder except in the case of gross negligence, bad faith or willful misconduct. Natural Health and Woodburn and LaCore hereby covenant and agree to jointly but not sev▇▇▇▇▇▇ ▇ndemn▇▇▇ ▇▇e Escrow Agent and hold it harmless without limitation from and against any loss, liability or expenses and other costs, including but not limited to reasonable attorney's fees and other costs of defending or preparing to defend against any claim of liability, 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. In the event of any payment by Natural Health or Woodburn and LaCore pursuant to the indemnification obligation set f▇▇▇▇ ▇▇ this ▇▇▇▇▇▇aph (b), such obligation shall first be satisfied out of the income earned with respect to the Cash Deposit, and if such income is insufficient to satisfy such obligation then Natural Health on the one hand and Woodburn and LaCore on the other, shall pay the remainder of such ob▇▇▇▇▇▇▇▇ in t▇▇ ▇▇▇al shares.
(c) Natural Health on the one hand and Woodburn and LaCore on the other, agree to reimburse in two equal sh▇▇▇▇ Colonial Investment Group▇▇▇ Escr▇▇ ▇▇▇nt for all reasonable out-of-pocket expenses incurred in connection with the administration of the escrow created hereby, provided that such expenses shall not exceed $10,000 in the aggregate. Natural Health and Woodburn and LaCore agree that the amounts required to be paid pursu▇▇▇ ▇▇ ▇his p▇▇▇▇▇▇ph (c) shall first be satisfied out of the income earned with respect to the Cash Deposit, and if such income is insufficient to satisfy such amounts then Natural Health on the one hand and Woodburn and LaCore on the other, shall pay the remainder of such ob▇▇▇▇▇▇▇▇ in t▇▇ ▇▇▇al shares.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving ten (10) days prior written notice of resignation to the other parties hereto; provided however, that such resignation shall not be charged with any knowledge effective until a successor escrow agent has been duly appointed and authorized. Prior to the effective date of the resignation as specified in such facts are communicated notice, Natural Health and Woodburn and LaCore will issue to the Escrow Agent in writing. The Escrow Agent shall not be required to institute or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such action, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earna written instruc▇▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liabilityhoriz▇▇▇ ▇▇delivery of the Escrow Funds to a successor escrow agent that they select. In If no successor escrow agent is named by Natural Health or Woodburn and LaCore, the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option may apply to deposit the Earna court of compet▇▇▇ ▇▇▇ey Deposit into ▇sdict▇▇▇ ▇▇ the State of Delaware (in accordance in the paragraph 14) for the appointment of a court successor escrow agent. The provisions of competent jurisdiction pending resolution paragraph (d) of this Section 5 shall survive the resignation or removal of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibilityor the termination of this Escrow Agreement.
Appears in 1 contract
Escrow Agent. 6.1 The duties of the Escrow Agent referred to above hereunder shall be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Groupentirely administrative and not discretionary. The Escrow Agent shall be obligated to act only in accordance with written instructions received by it as provided in this Escrow Agreement and is authorized hereby to comply with any orders, judgments or decrees of any court and shall not be charged liable as a result of its compliance with the same.
6.2 As to any knowledge until legal questions arising in connection with the administration of this Escrow Agreement, the Escrow Agent may rely absolutely upon the opinions given to it by its counsel and shall be free of liability for acting in reliance on such facts are communicated opinions.
6.3 The Escrow Agent may rely absolutely upon the genuineness and authorization of the signature and purported signature of any party upon any instruction, notice, release, receipt or other document delivered to it pursuant to this Escrow Agreement.
6.4 The Escrow Agent may, as a condition to the disbursement of monies or disposition of securities as provided herein, require from the payee or recipient a receipt therefor and, upon final payment or disposition, a release of the Escrow Agent from any liability arising out of its execution or performance of this Escrow Agreement, such release to be in a form satisfactory to the Escrow Agent in writing. Agent.
6.5 The Escrow Agent shall not be required entitled to institute refrain from taking any action contemplated by this Escrow Agreement in the event it becomes aware of any dispute between Semtech and the Shareholders (other than a dispute subject to the provisions of Section 3 of this Escrow Agreement) as to any material facts or maintain as to the happening of any litigation unless indemnified event precedent to his satisfaction such action.
6.6 Semtech agrees to pay the Escrow Agent a fee as set forth in Exhibit B attached hereto for his counsel feesits services hereunder, coststo be paid upon the --------- execution of this Escrow Agreement, disbursements and further agrees to reimburse the Escrow Agent for all other reasonable out-of-pocket expenses and liabilities to which he may, in his judgment, be subjected incurred in connection with such action, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as services provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibilityhereunder.
Appears in 1 contract
Sources: Escrow Agreement (Semtech Corp)
Escrow Agent. The Escrow Agent referred will have no duties or responsibilities except those expressly set forth herein. Except for this Escrow Agreement, the Escrow Agent is not a party to, or bound by, any agreement that may be required under, evidenced by, or arise out of the Purchase Agreement. If the Escrow Agent will be uncertain as to above shall its duties or rights hereunder or will receive instructions from any of the undersigned with respect to the Escrow Shares, that, in its opinion, are in conflict with any of the provisions of this Escrow Agreement, it will be Rich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment Groupentitled to refrain from taking any action until it will be directed otherwise in writing jointly by the Company, the Founders and the Purchasers or by a final nonappealable order of a court of competent jurisdiction. The Escrow Agent will not be liable for 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 that it may do or refrain from doing in connection herewith, except its own bad faith, gross negligence or willful misconduct, and the Escrow Agent will have no duties to anyone except the Company, the Founders and the Purchasers. Escrow Agent shall not be charged liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of bad faith, gross negligence or willful misconduct on its part. In no event shall Escrow Agent be liable (i) for acting in accordance with or relying upon any knowledge until such facts are communicated instruction, notice, demand, certificate or document provided to the Escrow Agent in writingaccordance with the terms of this Agreement, (ii) for any consequential, punitive or special damages, (iii) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians selected by Escrow Agent in its reasonable business judgment and in good faith with the prior consent of the Company, the Founders, and the Purchasers, or (iv) for an amount in excess of the value of the Escrow Shares, valued as of the date of deposit. The Escrow Agent shall may consult legal counsel in the event of any dispute or question as to the construction of this Escrow Agreement, or the Escrow Agent’s duties hereunder, and the Escrow Agent will incur no liability and will be fully protected with respect to any action taken or omitted in good faith in accordance with the opinion and instructions of such counsel. In the event of any disagreement between the undersigned or any of them, and/or any other person, resulting in adverse claims and demands being made in connection with or for the Escrow Shares, the Escrow Agent will be entitled at its option to refuse to comply with any such claim or demand, so long as such disagreement will continue, and in so doing the Escrow Agent will not be required or become liable for damages or interest to institute the undersigned or maintain any litigation unless indemnified of them or to his satisfaction any person named herein for his counsel its failure or refusal to comply with such conflicting or adverse demands. The Escrow Agent will be entitled to continue so to refrain and refuse so to act until all differences with respect thereto will have been resolved by agreement of the Founders and the Purchasers and the Escrow Agent will have been notified thereof in writing signed by the Founders and the Purchasers. In the event of such disagreement that continues for sixty (60) days or more, the Escrow Agent in its discretion may file a suit in interpleader for the purpose of having the respective rights of the claimants adjudicated, if the Escrow Agent determines such action to be appropriate under the circumstances, and may deposit with the court all documents and property held hereunder. The Founders and the Purchasers agree to pay all reasonable out-of-pocket costs and expenses incurred by the Escrow Agent in such action, including reasonable attorney’s fees, it being understood that the parties will use reasonable efforts to cause such costs and expenses to be included and apportioned between (i) the Founders and (ii) the Purchasers in the judgment in any such action (and absent such apportionment, the Founders, and the Purchasers will bear equal shares of such costs and expenses). The Company, the Founders and the Purchasers hereby agree to jointly and severally indemnify the Escrow Agent, its agents, nominees, partners, employees, officers and directors from all claims, losses, liabilities, costs, disbursements damages or expenses (including reasonable attorneys’ fees and all other expenses and liabilities to which he mayexpenses) (collectively, in his judgment, be subjected “Losses”) arising from or in connection with such actionor related to this Escrow Agreement or being Escrow Agent hereunder (including but not limited to Losses incurred by Escrow Agent in connection with its successful defense, except with respect to matters arising out in whole or in part, of the any claim of bad faith, gross negligence or willful misconduct on its part), provided, however, that nothing contained herein shall require Escrow Agent to be indemnified for Losses that have resulted from the bad faith, willful misconduct or gross negligence of the Escrow Agent. Seller Such indemnification (i) will be borne in equal proportions by the Company, the Founders and Purchaser shall at all times indemnify the Purchasers and (ii) will survive termination of this Escrow Agreement and resignation or removal of the Escrow Agent against all actions, proceedings, claims until extinguished by any applicable statute of limitations. The Escrow Agent does not own or demands arising out have any interest in the Escrow Shares deposited hereunder but is serving as escrow holder only and having only possession thereof and agreeing to hold and distribute the Escrow Shares in accordance with the terms and conditions of this transaction, except with respect to matters arising out Agreement. This paragraph will survive notwithstanding any termination of this Escrow Agreement or the resignation or removal of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, The Escrow Agent shall be empowered (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Shares to dispose (i) any banking corporation or trust company organized under the laws of the Earn▇▇▇ ▇▇▇ey Deposit United States or of any state that is jointly designated by the other parties hereto in writing as provided for successor escrow agent and consents in said paragraph without incurring writing to act as successor escrow agent or (ii) any liabilitycourt of competent jurisdiction; whereupon the Escrow Agent will be discharged of and from any and all further obligations arising in connection with this Escrow Agreement. In The resignation of the event Escrow Agent will take effect on the earlier of (x) the appointment of a dispute between Seller successor escrow agent by designation by the other parties hereto and Purchaser which cannot be resolved, delivery of the Escrow Shares to such successor escrow agent (or delivery of the Escrow Shares to any court of competent jurisdiction) or (y) the day that is sixty (60) days after the date of delivery of its written notice of resignation to the other parties. If at that time the Escrow Agent shall have has not received a designation of a successor Escrow Agent, the option Escrow Agent’s sole responsibility after that time will be to deposit safekeep the Earn▇▇▇ ▇▇▇ey Deposit into Escrow Shares until receipt of a designation of successor Escrow Agent, or a joint written instruction as to disposition of the Escrow Shares by the other parties, or a final order of a court of competent jurisdiction pending resolution mandating disposition of the deposition Escrow Shares. The Escrow Agent hereby accepts its appointment and agrees to act as escrow agent under the terms and conditions of said funds this Escrow Agreement and acknowledges receipt of the Escrow Shares. The Founders and the Purchasers will pay to interplead Seller the Escrow Agent as payment in full for its services hereunder the Escrow Agent’s compensation set forth in Schedule I hereto. The Founders and Purchaser the Purchasers further agree to reimburse the Escrow Agent for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Escrow Agent in respect thereofthe performance of its duties hereunder (including reasonable fees, and upon depositing said fundsout-of-pocket expenses and disbursements, of its counsel). Each of the Founders (collectively) and the Purchasers will pay one-half of the amounts required to be paid to the Escrow Agent pursuant to this Section 5(i). Other Deliverables. Prior to the Closing date, the Company, the Founders and the Purchasers agree to provide the Escrow Agent with the following items: An incumbency certificate for each of the Company and the Purchasers, which certificate shall bear no further responsibilityset forth the name, title and signature of each person permitted to authorize documents on their behalf pursuant to this Agreement, respectively; and A written investment direction executed by both the Company, the Founders and the Purchasers.
Appears in 1 contract
Sources: Convertible Redeemable Preferred Share and Warrant Purchase Agreement (Lotus Pharmaceuticals, Inc.)
Escrow Agent. The 5.1. Escrow Agent referred to above shall have no duties or obligations hereunder except those specifically set forth herein, and such duties and obligations shall be Rich▇▇▇ ▇determined solely by the express provisions of this Agreement. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment GroupIn connection with its duties hereunder, Escrow Agent shall be conclusively protected in acting or refraining from acting upon any written notice, request, consent, certificate, order, affidavit, letter, telegram or other document furnished to it hereunder and reasonably believed by it to be genuine and to have been signed or sent by the proper party or parties. The Escrow Agent shall not be charged liable for anything it may do or refrain from doing in connection with its duties hereunder including, without limitation, any knowledge until such facts are communicated to the mistake of fact or error of judgment or any acts or omissions of any kind, except as a result of its own gross negligence or willful misconduct. Escrow Agent may consult with counsel and shall be protected in writingrespect of any action taken or omitted to be taken by it in good faith on the advice of such counsel. The To the extent Escrow Agent has any reporting and withholding obligations for payments or disbursements made to any of the Beneficiaries under this Agreement, Escrow Agent shall issue any required Form 1099 (or similar form) in the name of the Beneficiaries.
5.2. As compensation for Escrow Agent’s services hereunder, MLBAM shall pay all of the fees set forth on Schedule II hereto. Subject to the preceding sentence, MLBAM, on the one hand, and the Beneficiaries (acting, for these purposes, jointly as one party), on the other hand, shall each pay one-half (1/2) of Escrow Agent’s Agent Losses (as hereinafter defined) as provided in Section 5.3.
5.3. The parties hereby agree, severally and not be required jointly, to institute or maintain indemnify and hold harmless Escrow Agent from and against any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other liabilities, losses, damages, judgments, claims, costs and expenses (excluding, for the avoidance of doubt, the fees set forth on Schedule II) (“Agent Losses”) relating to its duties as Escrow Agent under this Agreement (including, without limitation, the reasonable fees and liabilities disbursements of one counsel to Escrow Agent, which he maymay be imposed on, in his judgment, be subjected incurred by or assessed against Escrow Agent at any time in connection with such actionthe performance of its duties as Escrow Agent hereunder, except with respect to matters arising out of for Agent Losses resulting from the gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser The indemnification obligation in this Section 5.3 shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out survive any termination of this transaction, except with respect to matters arising out of the gross negligence Agreement or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into a court of competent jurisdiction pending resolution of the deposition of said funds and to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibility’s services hereunder.
Appears in 1 contract
Sources: Change in Control Bonus Escrow Agreement (Tickets Com Inc)
Escrow Agent. The parties hereto designate [****], located at [****], Attention: [****] (the “Title Company”) as the escrow agent (the “Escrow Agent”) in connection with this transaction. This Agreement shall serve as escrow instructions and shall be subject to the usual conditions of acceptance of the Escrow Agent, insofar as the same are not inconsistent with any of the terms hereof. By execution of this Agreement, the Escrow Agent referred to above shall be Rich▇▇▇ ▇. ▇▇▇agrees that the E▇▇▇▇▇▇ Deposit shall be held as a deposit under this Agreement in an interest-bearing account at a commercial bank whose deposits are insured by the Federal Deposit Insurance Corporation and: (i) applied against the Purchase Price if Closing occurs; or (ii) delivered to Sellers or Buyer, in accordance with the terms of this Agreement upon the written approval of Sellers and Buyer, if Closing does not occur. Interest on the E▇▇▇▇▇▇ Colonial Investment GroupDeposit shall be paid to the party entitled to receive the E▇▇▇▇▇▇ Deposit pursuant to this Agreement, or applied to the Purchase Price at Closing.
a) Escrow Agent is hereby appointed by B▇▇▇▇ and Sellers to receive, hold and dispose of the E▇▇▇▇▇▇ Deposit set forth above in accordance with the terms and conditions hereof. The Escrow Agent shall not be charged with release any knowledge until such facts are communicated or all of the E▇▇▇▇▇▇ Deposit without joint written instructions from Buyer and Sellers. Escrow Agent is acting solely as a stakeholder and depository, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of the subject matter of the escrow, or for the identity or authority of any person executing or depositing it.
b) B▇▇▇▇ and S▇▇▇▇▇▇ agree to indemnify, defend and hold harmless the Escrow Agent in writing. The Escrow Agent shall not be required to institute or maintain from and against any litigation unless indemnified to his satisfaction for his counsel feesloss, costscost, disbursements damage, expense and all other expenses and liabilities to which he may, in his judgment, be subjected attorney’s fees in connection with such action, except with respect to matters or in any way arising out of this Agreement, other than expenses resulting from the Escrow Agent’s own gross negligence or willful misconduct of Escrow Agent. Seller and Purchaser shall at all times indemnify the Escrow Agent against all actions, proceedings, claims or demands arising out of this transaction, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. misconduct.
c) In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have concerning the option to deposit the EarnE▇▇▇▇▇▇ Deposit, E▇▇▇ey ▇▇ Agent may continue to hold the E▇▇▇▇▇▇ Deposit into pursuant to the terms hereof, or may, after giving Buyer and Sellers at least fifteen (15) days’ advance, written notice, at the joint and several cost of the Buyer and Sellers, deposit the same in a court of competent jurisdiction pending resolution jurisdiction. Escrow Agent may dispose of the deposition of said funds and to interplead Seller and Purchaser E▇▇▇▇▇▇ Deposit in respect thereofaccordance with a court order, and upon depositing said fundsshall be fully protected if it acts in accordance with any such court order.
d) E▇▇▇▇▇ Agent may, at its own expense, consult with legal counsel in the event of any dispute or questions as to the construction of any provisions hereof or its duties hereunder, and it shall be fully protected in acting in accordance with the opinion or instructions of such counsel.
e) Escrow Agent shall bear no further responsibilitybe protected in acting upon any written notice, request, waiver, consent, certificate, receipt, authorization, power of attorney or other document Escrow Agent in good faith believes to be genuine and what it purports to be.
f) Notwithstanding anything to the contrary as contained in this Agreement, in any instance where the E▇▇▇▇▇▇ Deposit is to be delivered to Sellers as provided for in this Agreement, the parties acknowledge and agree that such E▇▇▇▇▇▇ Deposit shall be allocated in the same manner and percentages across the respective Properties as the Purchase Price has been allocated, and each respective Seller shall be entitled to receive such portion of the E▇▇▇▇▇▇ Deposit that corresponds to the allocation of the Purchase Price with respect to the Property owned by such Seller.
Appears in 1 contract
Escrow Agent. The parties further agree that:
4.3.1. The Escrow Agent referred is executing this Agreement to above acknowledge the Escrow Agent’s responsibilities hereunder, which may be modified only by a written amendment signed by all of the parties. Any amendment to this Agreement that is not signed by the Escrow Agent shall be Rich▇▇▇ ▇effective as to the parties thereto, but shall not be binding on the Escrow Agent. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment GroupEscrow Agent shall accept the Deposit with the understanding of the parties that Escrow Agent is not a party to this Agreement except to the extent of its specific responsibilities hereunder, and does not assume or have any liability for the performance or non-performance of Purchaser or Seller hereunder to either of them.
4.3.2. The Escrow Agent shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document which is given to the Escrow Agent without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document;
4.3.3. The Escrow Agent shall not be charged with bound in any knowledge until such facts are communicated to way by any other agreement or understanding between the parties hereto, whether or not the Escrow Agent has knowledge thereof or consents thereto unless such consent is given in writing.
4.3.4. The Escrow Agent’s sole duties and responsibilities shall be to hold and disburse the Deposit and Interest accrued thereon in accordance with this Agreement.
4.3.5. The Escrow Agent shall not be required liable for any action taken or omitted by the Escrow Agent in good faith and believed by the Escrow Agent to institute be authorized or maintain any litigation unless indemnified to his satisfaction for his counsel fees, costs, disbursements and all other expenses and liabilities to which he may, in his judgment, be subjected in connection with such actionwithin its rights or powers conferred upon it by this Agreement, except with respect to matters arising out of for damage caused by the gross negligence or willful misconduct of the Escrow Agent.
4.3.6. Upon the disbursement of the Deposit and Interest accrued thereon in accordance with this Agreement, the Escrow Agent shall be relieved and released from any liability under this Agreement.
4.3.7. The Escrow Agent may resign at any time upon at least ten (10) days prior written notice to the parties hereto. If, prior to the effective date of such resignation, the parties hereto shall all have approved, in writing, a successor escrow agent, then upon the resignation of the Escrow Agent, the Escrow Agent shall deliver the Deposit and Interest accrued thereon to such successor escrow agent. From and after such resignation and the delivery of the Deposit and Interest accrued thereon to such successor escrow agent, the Escrow Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement, all of which duties, responsibilities and obligations shall be performed by the appointed successor escrow agent. If for any reason the parties hereto shall not approve a successor escrow agent within such period, the Escrow Agent may bring any appropriate action or proceeding for leave to deposit the Deposit and Interest accrued thereon with a court of competent jurisdiction, pending the approval of a successor escrow agent, and upon such deposit the Escrow Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement.
4.3.8. Seller and Purchaser shall at all times indemnify hereby agree to, jointly and severally, indemnify, defend and hold the Escrow Agent harmless from and against all actionsany liabilities, proceedingsdamages, losses, costs or expenses incurred by, or claims or demands arising charges made against, the Escrow Agent (including attorneys’ fees, expenses and court costs) by reason of the Escrow Agent’s acting or failing to act in connection with any of the matters contemplated by this Agreement as escrow agent or in carrying out the terms of this transactionAgreement as escrow agent, except with respect to matters arising out as a result of the Escrow Agent’s gross negligence negligence, bad faith or willful misconduct misconduct.
4.3.9. Subject to the provisions of Escrow Agent. Upon failure Section 4.2.5, in the event that a dispute shall arise in connection with this Agreement, or as to the rights of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose any of the Earn▇▇▇ ▇▇▇ey parties in and to, or the disposition of, the Deposit as provided for in said paragraph without incurring any liability. In and Interest, the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent shall have the option right to (w) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration or otherwise, or (x) deposit the Earn▇▇▇ ▇▇▇ey Deposit into and Interest in an appropriate court of law, following which the Escrow Agent shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement, or (y) institute an action in interpleader or other similar action permitted by stakeholders in the State of New York, or (z) interplead any of the parties in any action or proceeding which may be brought to determine the rights of the parties to all or any part of the Deposit.
4.3.10. The Escrow Agent shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained.
4.3.11. The parties hereto represent that prior to the negotiation and execution of this Agreement they were advised that the Escrow Agent was representing Seller as such party’s attorney in connection with this Agreement and the transaction referred to herein and the parties hereto covenant that they shall not object, on the grounds of conflict of interest or otherwise, to the Escrow Agent continuing to act as the attorney for Seller in connection with this Agreement and the transaction contemplated herein, or to act as Seller’s attorney in connection with any dispute in connection herewith or any other matter, as well as act as the Escrow Agent hereunder; provided, however, that the Escrow Agent deposits the Deposit and Interest with a court of competent jurisdiction pending resolution of or transfers the deposition of said funds Deposit and all accrued Interest thereon to interplead Seller and Purchaser in respect thereof, and upon depositing said funds, Escrow Agent shall bear no further responsibilitya mutually agreeable substitute escrow agent.
Appears in 1 contract
Escrow Agent. The Escrow Agent referred to above shall not be liable for any action taken or omitted by it in good faith and its liability hereunder shall be Rich▇▇▇ ▇limited to liability for gross negligence or willful misconduct on its part. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Colonial Investment GroupThe Company and the Purchaser agree to save harmless, indemnify and defend the Escrow Agent for, from and against their respective share of any loss, damage, liability, judgment, cost and expense whatsoever, by reason of, or on account of, any misrepresentation made to it or its status or activities as Escrow Agent under this Agreement except for any loss, damage, liability, judgment, cost or expense resulting from gross negligence or willful misconduct on the part of the Escrow Agent. The Escrow Agent shall not be charged responsible for any failure or inability of any of the parties to perform or comply with any knowledge until such facts are communicated to the provisions of this Agreement, or the agreements delivered in connection herewith. In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely in writing. The Escrow Agent good faith upon any document (including facsimile transmitted copies of documents), instrument or signature believed by it in good faith to be genuine and to be signed by any party hereto or an authorized officer or agent thereof, and shall not be required to institute investigate the truth or maintain accuracy of any litigation unless indemnified statement contained in any such document or instrument. The Escrow Agent may assume in good faith that any person purporting to his satisfaction for his give any notice in accordance with the provisions hereof has been duly authorized to do so. Each party hereto acknowledges that (a) the Escrow Agent is not acting as legal counsel fees, costs, disbursements and all other expenses and liabilities to which he may, such party in his judgment, be subjected any manner or respect in connection with the transactions contemplated by this Agreement, and (b) the Escrow Agent is serving as an accommodation to the parties hereto. It is understood and further agreed that the Escrow Agent shall:
(a) be under no duty to enforce payment of any subscription that is to be paid to and held by it hereunder;
(b) promptly notify the Purchaser and the Company of any discrepancy between the amounts set forth on any statement delivered by the Purchaser and/or the Company and the sum or sums delivered to it therewith;
(c) be under no duty to accept funds, checks, drafts or instruments for the payment of money from anyone other than the Company or the Purchaser, or to give any receipt therefor except to the Company or the Purchaser, with a copy in each case to the Company;
(d) be protected in acting upon any notice, request, certificate, approval, consent or other paper reasonably believed by it to be genuine and to be signed by the proper party or parties (including, but not limited to, copies of documents transmitted by facsimile);
(e) be permitted to consult with counsel of its choice, and shall not be liable for any action taken, suffered, or omitted by it in accordance with the advice of such actioncounsel; provided, except however, that nothing in this subsection (e), nor any action taken by the Escrow Agent, or suffered or omitted by it in accordance with respect to matters arising out the advice of any counsel, shall relieve the Escrow Agent from liability for any claims that are occasioned by its gross negligence or willful misconduct misconduct;
(f) not be bound by any modification, amendment, termination, cancellation, or rescission of Escrow Agent. Seller this Agreement, unless the same shall be in writing and Purchaser signed by it;
(g) be entitled to refrain from taking any action other than to keep all property held in escrow if it (i) shall at all times indemnify the Escrow Agent against all actionsbe uncertain concerning its duties or rights hereunder, proceedings, or (ii) shall have received claims or demands arising out from any party, or (iii) shall have received instructions from the Purchaser and/or the Company that, in the Escrow Agent's opinion, are in conflict with any of the provisions of this transactionAgreement, except with respect to matters arising out of the gross negligence or willful misconduct of Escrow Agent. Upon failure of Purchaser to comply with the requirements as set forth herein and pursuant to Paragraph 13 hereof, Escrow Agent shall be empowered to dispose of the Earn▇▇▇ ▇▇▇ey Deposit as provided for in said paragraph without incurring any liability. In the event of a dispute between Seller and Purchaser which cannot be resolved, Escrow Agent until it shall have the option to deposit the Earn▇▇▇ ▇▇▇ey Deposit into received a final judgment by a court of competent jurisdiction pending resolution jurisdiction;
(h) have no liability for following the instructions herein or expressly provided for herein, or the written instructions given jointly by the Purchaser and/or the Company; and/or
(i) have the right, at any time, to resign hereunder by giving written notice of its resignation to all other parties hereto at least three (3) business days prior to the deposition of said funds and date specified for such resignation to interplead Seller and Purchaser in respect thereoftake effect, and upon depositing said funds, the effective date of such resignation all cash and other payments and all other property then held by the Escrow Agent hereunder shall bear be delivered by it to such person as may be designated in writing by the other parties executing this Agreement, whereupon the Escrow Agent's obligations hereunder shall cease and terminate. If no further responsibility.such person has been designated by such date, all obligations of the Escrow Agent hereunder shall, nevertheless, cease and terminate. The Escrow Agent's sole responsibility thereafter shall be to keep safely all property then held by it and to deliver the same to a person designated by the
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