Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 3 contracts
Sources: Escrow Agreement (Flybondi LTD), Escrow Agreement (Flybondi Holdings PLC), Escrow Agreement (Flybondi Holdings PLC)
Escrow Agent. The Escrow Agent undertakes to perform only such shall have no duties as are or responsibilities other than those expressly set forth herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, shall be impliedthis Escrow Agreement. The Escrow Agent shall neither be liable as an escrow agent only and shall not be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, or accountable for the terms and conditions correctness of any other agreementinformation set forth in any statements delivered to it including, instrument without limitation, any disbursement notice delivered by the Company pursuant to Section 4(a) or document between the PartiesSection 4(b), in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent not be required in any event to determine if any Person has complied with verify the correctness of any such agreementsstatements and shall not be responsible for verifying compliance by the Company with the requirements any securities laws, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreementsrules or regulations, even though reference thereto may be made in this Agreement. Notwithstanding or the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agentsubscription agreement. The Escrow Agent may shall be entitled to rely, without any investigation whatsoever, upon any communication received from the Company, and the Escrow Agent shall be entitled to deem the signatories of any subscription agreement or any communication submitted to it hereunder as being those purported to be authorized to sign such communication on behalf of such party and shall be entitled to rely upon on the genuineness of the signatures of such signatories without inquiry and without sustaining evidence of any kind. The Escrow Agent shall have the right to consult with counsel and shall be fully protected and shall not be liable with respect to any action taken or omitted by the Escrow Agent in good faith and on advice of counsel, and shall be fully protected and shall not be liable for acting any error of judgments or refraining from acting upon for any Joint Release Instruction, Final Determination, act done or Objection Notice furnished to it hereunder and reasonably believed omitted by it to be genuine and to have been signed and presented by an authorized signer of the proper Party in good faith, except for its own gross negligence or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. 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 requestwillful misconduct. The Escrow Agent shall have no duty duties to solicit anyone except those signing this Escrow Agreement. The Escrow Agent shall have the right to perform any payments which may be due it of its duties hereunder through agents, attorneys, custodians or nominees. In addition:
(a) if any property held under this Escrow Agreement is attached, garnished, or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by an order of court, or any order, judgment or decree shall be made or entered by any court order affecting the property deposited under this Escrow Funds. In the event that Agreement, or any part thereof, the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, is expressly authorized in its opinionsole direction, conflict to obey and comply with all writs, orders or decrees so entered or issued, which it is advised by legal counsel of its own choosing are binding upon it, whether with or without jurisdiction, and in case the Escrow Agent obeys or complies with any such writ, order or decree it shall not be liable to any of the provisions parties hereto or to any other person, firm or corporation, by reason of such compliance notwithstanding such writ, order or decree be subsequently reversed, modified, annulled, set aside or vacated;
(b) if the Escrow Agent becomes involved in litigation on account of the Escrow Funds or of this Escrow Agreement, it shall have the right to retain counsel and shall have a lien on the property deposited hereunder for any and all reasonable costs, attorneys’ and solicitors’ fees, charges, disbursements, and expenses in connection with such litigation; and shall be entitled to refrain from taking any action reimburse itself therefor out of the property deposited hereunder, and its sole obligation shall be to keep safely all property held in escrow until if it shall be directed otherwise unable to reimburse itself from the property deposited hereunder, the Company agrees to pay to the Escrow Agent on demand, its reasonable charges, counsel and attorneys’ fees, disbursements, and expenses in a Joint Release Instruction, Final Determination, connection with such litigation; and
(c) any corporation or Objection Notice. The association into which the Escrow Agent may interplead all the be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business and assets held hereunder into as a court of competent jurisdiction whole or may seek substantially as a declaratory judgment with respect to certain circumstanceswhole, and thereafter be fully relieved or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall be and become the successor Escrow Agent hereunder and vested with all of the title to the whole property or trust estate and all liability of the trusts, powers, immunities, privileges, protections and all other matters as was its predecessor, without the execution or obligation with respect to such interpleaded assets filing of any instrument or any action further act, deed or nonaction based conveyance on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction part of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action takenparties hereto, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement anything herein to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 3 contracts
Sources: Escrow Agreement (Press Ventures, Inc.), Escrow Agreement (Title Starts Online, Inc.), Escrow Agreement (Title Starts Online, Inc.)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Underwriting Agreement by and between the Company and the Underwriter dated the date set forth in the Company’s Rule 424 final prospectus filed as a part of the Registration Statement (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreementsthe Underlying Agreement, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreementsthe Underlying Agreement, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of any Underlying Agreement, any schedule or exhibit attached to the Agreement, or any other agreement between among the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or PartiesParties without inquiry and without requiring substantiating evidence of any kind. Concurrent with The Escrow Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementthe Fund, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 11 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required thereunder. 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 have no duty to solicit any payments which may be due it or the Fund, including, without limitation, the Escrow FundsDeposit 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 3 contracts
Sources: Escrow Agreement (Xstream Systems Inc), Escrow Agreement (Xstream Systems Inc), Escrow Agreement (Xstream Systems Inc)
Escrow Agent. The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, has no knowledge of, nor have any requirements requirement to comply with, the terms and conditions of any other agreement, instrument or document agreement between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person Party has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreementother agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will shall control the actions of the Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting any written notice, document, instruction or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably request delivered by the Parties believed by it to be genuine and to have been signed and presented by an authorized signer Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. The 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. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, 's gross negligence, negligence or willful misconduct was the cause of any direct loss to either Party. To Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the extent practicableevent Escrow Agent receives instructions, claims or demands from any Party hereto which 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 a joint written direction executed by Authorized Representatives of the Parties which eliminates such conflict or by a final court order 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 Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making Funds nor shall the Escrow Agent a party have any duty or obligation to confirm or verify the sameaccuracy 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, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 3 contracts
Sources: Subscription Escrow Agreement (Sunity Online Entertainment LTD), Subscription Escrow Agreement (Sunity Online Entertainment LTD), Subscription Escrow Agreement (Sunity Online Entertainment LTD)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination APA (each an “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreementsUnderlying Agreement, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreementsany Underlying Agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of any Underlying Agreement, any schedule or exhibit attached to the Agreement, or any other agreement between among the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or PartiesParties without inquiry and without requiring substantiating evidence of any kind. Concurrent with The Escrow Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementthe Fund, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 11 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required thereunder. 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 have no duty to solicit any payments which may be due it or the Fund, including, without limitation, the Escrow FundsDeposit 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Syncardia Systems Inc), Asset Purchase Agreement (Syncardia Systems Inc), Asset Purchase Agreement (World Heart Corp)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Partiesparties and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Merger Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding
(b) In the event of any conflict between the terms and provisions of this Agreement with those of the Merger Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between the PartiesIndemnified Party Representative, the Securityholder Representative or any other person or entity related to the Escrow Agent’s duties hereunder, the terms and conditions of this Agreement will control the actions of the Escrow Agent. shall control.
(c) The Escrow Agent may rely upon upon, and shall not be liable for acting or refraining from acting upon upon, any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer any of the proper Party parties without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary, or Parties. Concurrent with other person or entity, for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementthe Escrow Shares, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 9 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due 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.
(d) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's fraud, gross negligence or willful misconduct was the primary cause of any loss to any party hereto or any beneficiary of the Escrow Shares. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents.
(e) The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's fraud, gross negligence or willful misconduct was the primary cause of any loss to any of the parties hereto or any beneficiary or the Escrow FundsShares. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instructionwriting which eliminates such ambiguity or uncertainty to the satisfaction of the Escrow Agent, Final Determination, until an Order or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into judgement of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 2 contracts
Sources: Merger Agreement (Abri SPAC I, Inc.), Indemnification Escrow Agreement (Abri SPAC I, Inc.)
Escrow Agent. The acceptance by the Escrow Agent undertakes of his duties hereunder is subject to perform only such duties as are expressly set forth hereinthe following terms and conditions, which the parties to this Agreement hereby agree shall be deemed purely ministerial in naturegovern and control with respect to the rights, and no duties, including but not limited to any fiduciary duty, shall be implied. liabilities and immunities of the Escrow Agent:
3.1 The Escrow Agent shall neither not be responsible foror liable in any manner whatever for the sufficiency, nor chargeable withcorrectness, knowledge of, nor have any requirements to comply with, the terms and conditions genuineness or validity of any cash, Shares, certificates, investments or other agreement, instrument amounts deposited with or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. held by it.
3.2 The Escrow Agent may rely upon and shall not be liable for acting or refraining from protected in acting upon any Joint Release Instructionwritten notice, Final Determinationcertificate, instruction, request or Objection Notice furnished to it hereunder and reasonably other paper or document believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party party or Partiesparties.
3.3 The Escrow Agent shall not be liable for any act done hereunder except in the case of its reckless or willful misconduct or actions taken in bad faith.
3.4 The Escrow Agent shall not be obligated or permitted to investigate the correctness or accuracy of any document or to determine whether or not the signatures contained in said documents are genuine or to require documentation or evidence substantiating any such document or signature.
3.5 The Escrow Agent shall have no duties as Escrow Agent except those which are expressly set forth herein, and in any modification or amendment hereof; provided, however, that no such modification or amendment hereof shall affect its duties unless it shall have given its written consent thereto. Concurrent with The Escrow Agent shall not be prohibited from owning an equity interest in the execution of this AgreementCompany, the Parties shall deliver to Holder, another Holder, any of their respective subsidiaries or any third party that is in any way affiliated with or conducts business with either the Company, the Holder or another Holder.
3.6 The Company and the Holder specifically acknowledge that the Escrow Agent authorized signers’ forms is a practicing attorney, and may have worked with the Company, the Holder, or affiliates of either of them on other unrelated transactions, and that they and each of them has specifically requested that the Escrow Agent draft some or all of the documents for the said transactions and act as provided Escrow Agent with respect to the said transactions. Each party represents that it has retained legal and other counsel of its choosing with respect to the transactions contemplated herein and in the Purchase Agreement, and is satisfied in its sole discretion with the form and content of the documentation drafted by the Escrow Agent. The Escrow Agent shall be under no duty to inquire into may purchase an equity interest in the Company and/or may become an equity owner of the Holder or investigate the validityanother Holder, accuracy and may increase or content of sell any such documentinterest, notice, instruction so long as in accordance with any and all applicable law. The said parties hereby waive any objection to the Escrow Agent so acting based upon conflict of interest or requestlack of impartiality. The Escrow Agent shall have no duty agrees to solicit any payments which may be due it or act impartially and in accordance with the Escrow Funds. In terms of this Agreement and with the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive parties' respective instructions, claims or demands from any Party hereto which, so long as they are not in its opinion, conflict with any of the provisions terms of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 2 contracts
Sources: Stock Escrow and Security Agreement (Kanakaris Wireless), Stock Escrow and Security Agreement (Kanakaris Communications Inc)
Escrow Agent. The Escrow Agent undertakes to perform only such shall have no duties as are or responsibilities other than those expressly set forth herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, shall be impliedthis Escrow Agreement. The Escrow Agent shall neither be liable as a depository only and shall not be responsible foror accountable for the correctness of any information set forth in any statements delivered to it including, nor chargeable withwithout limitation, knowledge ofany disbursement notice delivered by the Party A pursuant to Section 5(a) or Section 5(b), nor have shall not be required in any event to verify the correctness of any such statements and shall not be responsible for verifying compliance by the Party A with the requirements to comply withof Rule 506 of Regulation D, the terms rules and conditions of regulations thereunder or any other agreementsecurities laws, instrument rules or document between the Partiesregulations, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding or the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agentsubscription agreement. The Escrow Agent may shall be entitled to rely, without any investigation whatsoever, upon any communication received from the Party A, and the Escrow Agent shall be entitled to deem the signatories of any subscription agreement or any communication submitted to it hereunder as being those purported to be authorized to sign such communication on behalf of such party and shall be entitled to rely upon on the genuineness of the signatures of such signatories without inquiry and without sustaining evidence of any kind. The Escrow Agent shall have the right to consult with counsel and shall be fully protected and shall not be liable with respect to any action taken or omitted by the Escrow Agent in good faith and on advice of counsel, and shall be fully protected and shall not be liable for acting any error of judgments or refraining from acting upon for any Joint Release Instruction, Final Determination, act done or Objection Notice furnished to it hereunder and reasonably believed omitted by it to be genuine and to have been signed and presented by an authorized signer of the proper Party in good faith, except for its own gross negligence or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. 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 requestwillful misconduct. The Escrow Agent shall have no duty duties to solicit anyone except those signing this Escrow Agreement. The Escrow Agent shall have the right to perform any payments of its duties hereunder through agents, attorneys, custodians or nominees. In addition:
(a) if any property held under this Escrow Agreement is attached, garnished, or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by an order of court, or any order, judgment or decree shall be made or entered by any court order affecting the property deposited under this Escrow Agreement, or any part thereof, the Escrow Agent is expressly authorized in its sole discretion, to obey and comply with all writs, orders or decrees so entered or issued, which it is advised by legal counsel of its own choosing are binding upon it, whether with or without jurisdiction, and in case the Escrow Agent obeys or complies with any such writ, order or decree it shall not be liable to any of the parties hereto or to any other person, firm or corporation, by reason of such compliance notwithstanding such writ, order or decree be subsequently reversed, modified, annulled, set aside or vacated;
(b) if the Escrow Agent becomes involved in litigation on account of this deposit or of this Escrow Agreement, it shall have the right to retain counsel and shall have a lien on the property deposited hereunder for any and all reasonable costs, attorneys' and solicitors' fees, charges, disbursements, and expenses in connection with such litigation; and shall be entitled to reimbursement from Party A for its reasonable charges, counsel and attorneys' fees, disbursements, and expenses in connection with such litigation and, to the extent such reimbursement is not paid by the Party A, out of the property deposited hereunder; and
(c) any corporation or association into which the Escrow Agent may be due converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall be and become the successor Escrow Funds. In Agent hereunder and vested with all of the event title to the whole property or trust estate and all of the trusts, powers, immunities, privileges, protections and all other matters as was its predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as give notice to the meaning or construction Party A of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it such change in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 2 contracts
Sources: Escrow Agreement (UBS Managed Futures LLC (Aspect Series)), Escrow Agreement (UBS Managed Futures LLC (Aspect Series))
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no other duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Instruction or Final Determination, or Objection Notice Determination furnished to it hereunder and reasonably believed by it in good faith to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by in the Escrow Agentform of Exhibit A-1 and Exhibit A-2. 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; provided, however, that the Escrow Agent may not act upon instruction by either the Sponsor or the Parent alone where Joint Written Instruction is required as provided hereunder. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow FundsProperty. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any either Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to (a) refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Instruction or Final Determination, Determination or Objection Notice. The Escrow Agent may (b) interplead all of the assets held hereunder into into, or may seek other judicial relief or orders from, a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstancesjurisdiction, and thereafter be fully relieved from the Escrow Agent shall act in accordance with any and all liability such judicial relief or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentcourt order. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be 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 fraud, gross negligence, negligence or willful misconduct was the direct cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any commercially reasonable redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, except in the case of the Escrow Agent’s fraud, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 2 contracts
Sources: Escrow Agreement (Tattooed Chef, Inc.), Merger Agreement (Forum Merger II Corp)
Escrow Agent. (a) The Escrow Agent undertakes shall be obligated only to perform only such the duties as are expressly specifically set forth hereinin this Agreement, which shall be deemed purely ministerial in nature, and shall under no duties, including but not limited circumstances be deemed to be a fiduciary to any fiduciary duty, shall be impliedparty or any other person. The parties agree that the Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have not assume any requirements to comply with, responsibility for the terms and conditions failure of any the parties (other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall than the Escrow Agent be required Agent) to determine if any Person has complied perform in accordance with any such agreementsthis Agreement. This Agreement sets forth all matters pertinent to the escrow contemplated hereunder, nor shall any and no additional obligations of the Escrow Agent shall be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of Agreement or any other agreement between agreement. In no event shall the PartiesEscrow Agent be liable, directly or indirectly, for any (i) damages or expenses arising out of the terms and conditions of this Agreement will control the actions of services provided hereunder, other than damages which result from the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting ’s gross negligence or refraining from acting upon any Joint Release Instruction, Final Determinationwillful misconduct, or Objection Notice furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party (ii) special or Parties. Concurrent with the execution of this Agreementconsequential damages, the Parties shall deliver to even if the Escrow Agent has been advised of the possibility of such damages.
(b) Except for advancing margin or other credit to the Company in violation of Section 6 above, the Escrow Agent shall have no responsibility or liability to the Trustee for making trades of Financial Assets held in the Escrow Account at the instruction of the Company, or its authorized signers’ forms as provided representative, or complying with entitlement orders in accordance with Section 5 above concerning the Escrow Account from the Company, or its authorized representative, which are received by the Trustee before Escrow AgentAgent receives a Notice of Exclusive Control. The Escrow Agent shall be under have no duty responsibility or liability to inquire into the Company for complying with a Notice of Exclusive Control or investigate complying with entitlement orders concerning the validity, accuracy or content of any such document, notice, instruction or requestEscrow Account originated by the Trustee. The Escrow Agent shall have no duty to solicit investigate or make any payments which determination as to whether the conditions for the issuance of a Notice of Exclusive Control contained in any agreement between the Company and the Trustee have occurred. Neither this Agreement nor the Security Agreement imposes or creates any obligation or duty of the Escrow Agent other than those expressly set forth herein.
(c) The Escrow Agent, in its capacity as such, shall have no duties or responsibilities, including, without limitation, a duty to review or interpret the Indenture, except those expressly set forth herein. Except for this Agreement, the Escrow Agent, in its capacity as such, is not a party to, or bound by, any agreement that may be due it required under, evidenced by, or arise out of the Escrow Funds. In the event that Indenture.
(d) If the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands instructions from any Party hereto of the undersigned with respect to the Escrow Account, which, in its opinion, are in conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by a Joint Release Instruction, Final Determination, joint written instruction of the Company and the Trustee or Objection Noticeby order of a court of competent jurisdiction. The Escrow Agent may interplead all shall be protected in acting upon any notice, request, waiver, consent, receipt or other document reasonably believed by the assets held hereunder into a court of competent jurisdiction Escrow Agent to be signed by the proper party or may seek a declaratory judgment parties and shall not be liable with respect to certain circumstancesany action taken or omitted to be taken by it in accordance with any instruction received by it hereunder. Concurrent with the execution of this Agreement, the Company shall deliver to the Escrow Agent an authorized signers form in the form of Exhibit A to this Agreement.
(e) The Escrow Agent shall not be liable for any act or omission while acting in good faith. Any act or omission by the Escrow Agent pursuant to the advice of its attorneys shall be conclusive evidence of such good faith. The Escrow Agent shall not be liable for the alteration, modification or elimination of any right permitted or given under any instructions and/or in any document deposited under this Agreement due to any delay, any statute of limitations or due to any other reason. The Escrow Agent shall have no further responsibility or liability whatsoever to the Company or the Trustee following a partial or complete distribution of the funds and thereafter be fully relieved from securities held in the Escrow Account pursuant to this Agreement. The Escrow Agent shall not incur any and all liability or obligation with respect to any act or omission in reliance upon any document, including any written notice or instruction provided for in this Agreement. In performing its obligations hereunder, the Escrow Agent shall be entitled to presume, without investigation or inquiry, the due execution, validity, effectiveness and enforceability of all documents it receives and shall be entitled to rely upon the genuineness of the signatures of the signatories of such interpleaded assets documents, and also the truth and accuracy of any information contained therein. The Escrow Agent assumes no responsibility for the validity or sufficiency of any action or nonaction based on such declaratory judgment. instrument held as in the Escrow Account.
(f) The Escrow Agent may consult with legal counsel or other professionals of its selection choice in the event of any dispute or question as to the meaning or construction of any of this Agreement, or the provisions hereof or its Escrow Agent’s duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected with respect to any action taken or omitted in good faith in accordance with the opinion and instructions of counsel or such other professionals. The Escrow Agent will may in all cases pay reasonable compensation to such counsel and shall be entitled to reimbursement as set forth in Section 9.1(h) for all such compensation paid. The Escrow Agent may perform its duties through its agents, attorneys, custodians or nominees.
(g) 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 Account, the Escrow Agent shall be entitled at its option to refuse to comply with any such claim or demand, so long as such disagreement shall continue, and in so doing the Escrow Agent shall not be or become liable for any action taken, suffered damages or omitted to be taken by it in good faith except interest to the extent that undersigned or any of them or to any person named herein for its failure or refusal to comply with such conflicting or adverse demands. The Escrow Agent’s fraud, gross negligence, Agent shall be entitled to continue so to refrain and refuse so to act until all differences shall have been resolved by agreement and the Escrow Agent shall have been notified thereof in writing signed by the Company and the Trustee. In the event of such disagreement which continues for ninety (90) days or willful misconduct was the cause of any direct loss to either Party. To the extent practicablemore, the Parties Escrow Agent in its discretion may, but shall be under no obligation to, file a suit in interpleader for the purpose of having the respective rights of the claimants adjudicated and may deposit with the court all documents and property held hereunder. The Company agrees to pay all reasonable out-of-pocket costs and expenses incurred by the Escrow Agent in such action, including reasonable attorneys’ fees and disbursements. In no event shall the institution of such interpleader action impair the rights of the Escrow Agent described elsewhere in this Agreement. The parties other than the Escrow Agent further agree to pursue any redress or recourse in connection with any dispute (other than with respect to such a dispute involving the Escrow Agent) dispute, without making the Escrow Agent a party to the same. Anything in this Agreement .
(h) The Company agrees to the contrary notwithstanding, in no event shall indemnify and hold harmless the Escrow Agent from and against, any and all loss, liability, cost, damage and expense, including, without limitation, counsel fees, which the Escrow Agent may suffer or incur by reason of any action, claim or proceeding brought against the Escrow Agent arising out of or relating in any way to this Agreement or any transaction to which this Agreement relates unless such losses, liabilities, costs damages and expenses shall have been finally adjudicated to have resulted from the willful misconduct or gross negligence of the Escrow Agent. The Escrow Agent may consult counsel of its choice with respect to any question arising under this Agreement, and the Escrow Agent shall not be liable, liable for any specialaction taken or omitted in good faith upon advice of such counsel. The provisions of this Section 9(h) shall survive the resignation or removal of the Escrow Agent and the termination of this Agreement.
(i) The Escrow Agent, indirectin its capacity as such, punitivedoes not have any interest in the Escrow Account or any funds or securities deposited hereunder but is serving as escrow holder only and having only possession thereof. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(j) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by giving written notice of its resignation to the parties hereto at least thirty (30) days prior to the date specified for such resignation to take effect. The Escrow Agent may be removed at any time by act of the Trustee along with payment of all fees and expenses to which it is entitled through the date of termination. Upon the effective date of such resignation or removal of the Escrow Agent, incidentalall funds and securities in the Escrow Account shall be delivered by it to such successor Escrow Agent or as otherwise shall be instructed in writing by the Company and the Trustee, or consequential losses or damages whereupon the Escrow Agent shall be discharged of and from any kind whatsoever (including but not limited to lost profits), even if and all further obligations arising in connection with this Agreement. If at that time the Escrow Agent has been advised not received such instruction, the Escrow Agent’s sole responsibility after that time shall be to safekeep the Escrow Account and all funds and securities contained therein until receipt of a designation of successor Escrow Agent, or a joint written instruction as to disposition of the likelihood Escrow Account and all funds and securities contained therein by the Company and the Trustee or a final order of a court of competent jurisdiction mandating disposition of the Escrow Account and all funds and securities contained therein. If the Escrow Agent is removed or resigns, the Company, by a Board Resolution, shall promptly appoint a successor Escrow Agent. If the Company has failed to appoint a successor prior to the expiration of thirty (30) days following receipt of the notice of resignation or removal, the Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent or for other appropriate relief, and any such resulting appointment shall be binding upon all of the parties.
(k) The Escrow Agent hereby accepts its appointment and agrees to act as Escrow Agent under the terms and conditions of this Agreement and acknowledges receipt of the Initial Escrow Amount. The Company agrees to pay to the Escrow Agent as payment in full for its services hereunder the Escrow Agent’s compensation as mutually agreed by the parties hereto, provided, however, that in the event that the conditions for the disbursement of funds under this Agreement are not fulfilled, or at the request of the Company, the Escrow Agent renders any material service not contemplated in this Agreement, or there is any assignment of interest in the subject matter of this Agreement, or any material modification hereof, or if any material controversy arises hereunder, or the Escrow Agent is made a party to any litigation pertaining to this Agreement, or the subject matter hereof, then the Escrow Agent shall be reasonably compensated for such requested services and reimbursed for all costs and expenses, including reasonable attorney’s fees, occasioned by any delay, controversy, litigation or event, and the same shall be recoverable from the Company. The Company further agrees to reimburse the Escrow Agent for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Escrow Agent in the performance of its duties hereunder (including reasonable fees, and out-of-pocket expenses and disbursements, of its counsel). If fees are not paid within thirty (30) days of the date due, the Escrow Agent in its sole discretion may charge interest on its fees at the rate of 12% per annum. The obligations of the Company under the preceding two sentences shall survive the resignation or removal of the Escrow Agent and the termination of this Agreement until extinguished by any applicable statute of limitations.
(l) The permissive right of the Escrow Agent to do things enumerated in the Agreement shall not be construed as duties.
(m) No provision of this Agreement shall require the Escrow Agent to risk or advance its own funds or otherwise incur any financial liability in the performance of its duties or the exercise of its rights under this Agreement.
(n) 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 Agreement and shall have and succeed to the rights, powers, duties, immunities and privileges as its predecessor, without the execution of filing of any instrument or paper or the performance any further act.
(o) In the event that any funds or securities held in the Escrow Account shall be attached, garnished or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by an order of a court, or any order, judgment or decree shall be made or entered by any court order affecting the property deposited under this Agreement, the Escrow Agent is hereby expressly authorized, in its sole discretion, to obey and comply with all writs, orders or decrees so entered or issued, which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction, and in the event that the Escrow Agent obeys or complies with any such writ, order or decree it shall not be liable to any of the parties or to any other person, firm or corporation, b y reason of such losses compliance notwithstanding such writ, order or damages and regardless of the form of actiondecree be subsequently reversed, modified, annulled, set aside or vacated.
Appears in 2 contracts
Sources: Indenture (FiberTower CORP), Indenture (FiberTower CORP)
Escrow Agent. (a) The Escrow Agent undertakes to perform only such will have no duties as are or responsibilities except those expressly set forth herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, shall be implied. The Except for this Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent is not a party to, or bound by, any agreement that may be required to determine if any Person has complied with any such agreementsunder, nor shall any additional obligations evidenced by, or arise out of the Purchase Agreement.
(b) If the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall will receive instructions, claims or demands instructions from any Party hereto whichof 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 shall will be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall will be directed otherwise in writing jointly by the Company, Founder and the Purchasers or by a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into final nonappealable order of a court of competent jurisdiction jurisdiction.
(c) 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 seek a declaratory judgment with respect to certain circumstancesdo or refrain from doing in connection herewith, except its own bad faith, gross negligence or willful misconduct, and thereafter the Escrow Agent will have no duties to anyone except the Company, Founder and the Purchasers. Escrow Agent shall not be fully relieved from any and all liability or obligation with respect to such interpleaded assets or liable for any action taken or nonaction based 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 such declaratory judgmentits part. In no event shall Escrow Agent be liable (i) for acting in accordance with or relying upon any instruction, notice, demand, certificate or document provided to the Escrow Agent in accordance 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 sub-custodians selected by Escrow Agent in its reasonable business judgment and in good faith with the prior consent of the Company, Founder, and the Purchasers, or (iv) for an amount in excess of the value of the Escrow Shares, valued as of the date of deposit.
(d) The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of 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.
(e) 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 provisions hereof 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 or become liable for damages or interest to the undersigned or any of them or to any person named herein for its duties hereunderfailure or refusal to comply with such conflicting or adverse demands. The Escrow Agent will not be liable entitled to continue so to refrain and refuse so to act until all differences with respect thereto will have been resolved by agreement of Founder and the Purchasers and the Escrow Agent will have been notified thereof in writing signed by Founder and the Purchasers. In the event of such disagreement that continues for any 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 taken, suffered or omitted to be taken appropriate under the circumstances, and may deposit with the court all documents and property held hereunder. Founder 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) Founder and (ii) the Purchasers in good faith except the judgment in any such action (and absent such apportionment, Founder, and the Purchasers will bear equal shares of such costs and expenses).
(f) The Company, Founder and the Purchasers hereby agree to jointly and severally indemnify the extent that Escrow Agent’s fraud, gross negligenceits agents, nominees, partners, employees, officers and directors from all claims, losses, liabilities, costs, damages or willful misconduct was the cause of any direct loss to either Party. To the extent practicableexpenses (including reasonable attorneys’ fees and expenses) (collectively, the Parties agree to pursue any redress “Losses”) arising from or recourse in connection with any dispute (other than with respect or related to a dispute involving the this Escrow Agent) without making the Agreement or being Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever hereunder (including but not limited to lost profitsLosses incurred by Escrow Agent in connection with its successful defense, in whole or in part, of any claim of bad faith, gross negligence or willful misconduct on its part), even if 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. Such indemnification (i) will be borne in equal proportions by the Company, Founder and the Purchasers and (ii) will survive termination of this Escrow Agreement and resignation or removal of the Escrow Agent until extinguished by any applicable statute of limitations.
(g) The Escrow Agent does not own or 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 Agreement. This paragraph will survive notwithstanding any termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(h) The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Shares to (i) any banking corporation or trust company organized under the laws of the United States or of any state that is jointly designated by the other parties hereto in writing as successor escrow agent and consents in writing to act as successor escrow agent or (ii) any court 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. The resignation of the Escrow Agent will take effect on the earlier of (x) the appointment of a successor escrow agent by designation by the other parties hereto and 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 has been advised not received a designation of a successor Escrow Agent, the Escrow Agent’s sole responsibility after that time will be to safe-keep the Escrow Shares until receipt of a designation of successor Escrow Agent, or a joint written instruction as to disposition of the likelihood Escrow Shares by the other parties, or a final order of such losses or damages and regardless a court of competent jurisdiction mandating disposition of the form Escrow Shares.
(i) The Escrow Agent hereby accepts its appointment and agrees to act as escrow agent under the terms and conditions of actionthis Escrow Agreement and acknowledges receipt of the Escrow Shares. Escrow Agent shall not be compensated for its services hereunder, provided that Founder and the Purchasers agree to reimburse the Escrow Agent for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Escrow Agent in the performance of its duties hereunder (including reasonable fees, and out-of-pocket expenses and disbursements, of its counsel). Founder and the Purchasers will pay one-half of the amounts required to be paid to the Escrow Agent pursuant to this Section 6(i).
Appears in 2 contracts
Sources: Escrow Agreement (Sino Clean Energy Inc), Escrow Agreement (Sino Clean Energy Inc)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. Under no circumstance will the Escrow Agent be deemed to be a fiduciary to any Party or any other person under this Escrow Agreement. The Escrow Agent will not be responsible or liable for the failure of any Party to perform in accordance with this Escrow Agreement. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the PartiesEscrow Parties and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Three Party Agreement or the Merger Agreement, nor shall whether or not an original or a copy of such agreement has been provided to the Escrow Agent. The Escrow Agent be required shall have no duty to determine know or inquire if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding .
(b) In the event of any conflict between the terms and provisions of this Agreement, those of the Three Party Agreement or the Merger Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between the PartiesEscrow Parties and any other person or entity, the terms and conditions of this Agreement will control the actions of the Escrow Agent. shall control.
(c) The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer the Escrow Parties without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Shares, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section X hereof and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section X hereof. 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 have no duty to solicit any payments which may be due 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.
(d) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to the Escrow Parties or the Pre-Merger Mesa Shareholders. The Escrow FundsAgent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents.
(e) The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to the Escrow Parties or the Pre-Merger Mesa Shareholders. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party the Escrow Parties hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of the Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything .
(f) The Escrow Agent shall not be responsible or liable for any failure or delay in the performance of its obligation under this Escrow Agreement to the contrary notwithstandingarising out of or caused, in no event shall directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; wars; acts of terrorism; civil or military disturbances; sabotage; epidemic; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications services; accidents; labor disputes; acts of civil or military authority or governmental action; it being understood that the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as reasonably practicable under the circumstances.
(g) No provision of any kind whatsoever (including but not limited to lost profits), even if this Escrow Agreement shall require the Escrow Agent has been advised to risk or advance its own funds or otherwise incur any financial liability or potential financial liability in the performance of its duties or the likelihood exercise of such losses or damages and regardless of the form of actionits rights under this Escrow Agreement.
Appears in 2 contracts
Sources: Agreement, Plan of Conversion and Plan of Merger (Mesa Air Group Inc), Escrow Agreement (Mesa Air Group Inc)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination AgreementFirst Lien Credit Agreement and the Second Lien Credit Agreement (collectively, the “Underlying Agreements”), nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreementsUnderlying Agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreementsany Underlying Agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of any Underlying Agreements, any schedule or exhibit attached to the Agreement, or any other agreement between among the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or PartiesParties without inquiry and without requiring substantiating evidence of any kind. Concurrent with The Escrow Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementthe Fund, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 11 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required thereunder. 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 have no duty to solicit any payments which may be due it or the Fund, including, without limitation, the Escrow FundsDeposit 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Lifetime Brands, Inc), Credit Agreement (Lifetime Brands, Inc)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the PartiesPurchaser, the Stockholder Representative and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Merger Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding
(b) In the event of any conflict between the terms and provisions of this Agreement with those of the Merger Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between the PartiesPurchaser, the Stockholder Representative or any other person or entity related to the Escrow Agent’s duties hereunder, the terms and conditions of this Agreement will control the actions of the Escrow Agent. shall control.
(c) The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer the Purchaser or the Stockholder Representative without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Shares, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 9 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due 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.
(d) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to either the Purchaser, the Stockholder Representative or any beneficiary or the Escrow FundsShares. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents.
(e) The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to either the Purchaser, the Stockholder Representative or any beneficiary or the Escrow Shares. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be directed otherwise given a direction in writing which eliminates such ambiguity or uncertainty to the satisfaction of the Escrow Agent, until a Joint Release Instruction, Final Determination, final and non-appealable order or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into judgement of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 2 contracts
Sources: Earnout Share Escrow Agreement (Nuvve Holding Corp.), Earnout Share Escrow Agreement (NB Merger Corp.)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Stock Purchase Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of the Stock Purchase Agreement, any schedule or exhibit attached to the Escrow Agreement, or any other agreement between among the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or PartiesParties without inquiry and without requiring substantiating evidence of any kind. Concurrent with the execution of this Agreement, the Parties Representative and Buyer shall deliver a Certificate as to Authorized Signers substantially in the form of Schedule 2 to this Agreement to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent, which schedule may be executed in counterparts. 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 have no duty to solicit any payments which may be due it or the Fund, including, without limitation, the Escrow FundsDeposit.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to any Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through attorneys, and shall be liable only for its gross negligence or willful misconduct (as finally adjudicated in a court of competent jurisdiction) for any action taken or omitted by the Escrow Agent in accordance with the advice of counsel or other professionals retained or consulted by the Escrow Agent. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow Escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Buyer and the Representative which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection Except in the event of any dispute willful misconduct or question as to the meaning or construction of any gross negligence of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstandingANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, in no event shall the Escrow Agent be liableIN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR SPECIAL, for any specialINCIDENTAL, indirectPUNITIVE, punitive, incidental, or consequential losses or damages of any kind whatsoever INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER (including but not limited to lost profitsINCLUDING BUT NOT LIMITED TO LOST PROFITS), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of actionEVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION.
Appears in 2 contracts
Sources: Escrow Agreement (Pharmaceutical Financial Syndicate, LLC), Escrow Agreement (Winston Pharmaceuticals, Inc.)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Merger Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of the Merger Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between among the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or PartiesParties without inquiry and without requiring substantiating evidence of any kind. Concurrent with The Escrow Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementany of the Funds, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 11 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 11. 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 have no duty to solicit any payments which may be due it or the Funds, including, without limitation, the Escrow FundsDeposits 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence, bad faith or willful misconduct was the primary cause of any loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Creative Realities, Inc.), Merger Agreement (Creative Realities, Inc.)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary dutyduties, shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Purchase Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Instruction or Final Determination, or Objection Notice Determination furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by in the Escrow Agentform of Exhibit A-1 and Exhibit A-2 attached hereto. 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Instruction or Final Determination, or Objection Notice. The Escrow Agent may interplead all of the assets held hereunder into a court of competent jurisdiction (as set forth in Section 13) or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered shall have no liability or omitted to be taken by it in good faith except obligation with respect to the extent that Escrow Funds except for the Escrow Agent’s fraud, willful misconduct or gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirect, punitive, incidental, incidental or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 2 contracts
Sources: Escrow Agreement (Quaker Chemical Corp), Escrow Agreement (Gulf Hungary Holding Korlatolt Felelossegu Tarsasag)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which Agent's responsibility and liability under this Agreement shall be deemed purely ministerial in naturelimited as follows:
(i) the Escrow Agent does not represent, and no duties, including but not limited warrant or guaranty to any fiduciary duty, shall be implied. The the holders of the Notes from time to time the performance of the Company or the Trustee; (ii) the Escrow Agent shall neither be have no responsibility to the Company or the holders of the Notes or the Trustee from time to time as a consequence of performance or nonperformance by the Escrow Agent hereunder, except for any gross negligence or wilful misconduct of the Escrow Agent; (iii) the Company shall remain solely responsible forfor all aspects of the Company's business and conduct; and (iv) the Escrow Agent is not obligated to supervise, nor chargeable with, knowledge of, nor have inspect or inform the Company or any requirements to comply with, the terms and conditions third party of any other agreement, instrument matter referred to above. No implied covenants or document between obligations shall be inferred from this Agreement against the Parties, in connection herewith, if any, including without limitation the Business Combination AgreementEscrow 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 Marketable Securities held by it hereunder, including, without limitation any liability for any delay not resulting from gross negligence or wilful misconduct in such investment, reinvestment or liquidation, or for any loss of principal or income incident to any such delay. The Escrow Agent shall be 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 if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from authenticity or the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms correctness of any other agreement between fact stated therein or the Parties, the terms and conditions propriety or validity of this Agreement will control the actions of the Escrow Agentservice thereof. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting act in reliance upon any Joint Release Instruction, Final Determination, instrument comporting with the provisions of this Agreement or Objection Notice furnished to it hereunder and reasonably signature believed by it to be genuine and may assume that any person purporting to have been signed and presented by an authorized signer of the proper Party give notice or Parties. Concurrent receipt or advice or make any statement or execute any document in connection with the execution 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 SECTION 4(a)(ii)) shall not be liable for any action taken or omitted in accordance with such advice. The Escrow Agent shall not be called upon to advise any party as to selling to retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder. In the event of any ambiguity in the provisions of this AgreementAgreement with respect to any funds or property deposited hereunder, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by 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 AgentAgent shall not be or become liable for its failure or refusal to comply with conflicting claims, demands or instructions. The Escrow Agent shall be under no duty entitled to inquire into refuse to act until either any conflicting or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, adverse claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into have been finally determined by a court of competent jurisdiction or may seek settled by agreement between the conflicting claimants as evidenced in a declaratory judgment with respect writing, satisfactory to certain circumstancesthe Escrow Agent, or the Escrow Agent shall have received security or an indemnity satisfactory to the Escrow Agent sufficient to save the Escrow Agent harmless from and thereafter be fully relieved from against any and all loss, liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentexpense which the Escrow Agent may incur by reason of its acting. The Escrow Agent may consult with legal counsel 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 selection own funds or otherwise incur any financial liability in the event of any dispute or question as to the meaning or construction performance of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 2 contracts
Sources: Interest Escrow Agreement (Echostar DBS Corp), Indenture (Echostar DBS Corp)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Partiesbetweenand any other person or entity, in connection herewith, if any, including without limitation the Business Combination Agreement, Underlying Agreement or nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding .
(b) In the event of any conflict between the terms and provisions of this Agreement, those of the Underlying Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between the PartiesParent and any other Person or entity, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer the without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Asset, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 10 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either Parent or the beneficiary. The Escrow FundsAgent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause .of any loss to either or the beneficiary. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of the Escrow Agent may interplead all the assets held hereunder into or by a final and non- appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 2 contracts
Sources: Escrow Agreement (Logiq, Inc.), Escrow Agreement (Collective Audience, Inc.)
Escrow Agent. The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no other duties, including but not limited to any fiduciary duty, shall be implied. The Notwithstanding anything to the contrary, Escrow Agent shall neither be responsible for, nor chargeable with, has no knowledge of, nor have any requirements obligation to comply with, the terms and conditions of any other agreement, instrument or document between Escrow Agent shall not be responsible for determining the Parties, in connection herewith, if any, including without limitation the Business Combination Agreementmeaning of any capitalized term not entirely defined herein, nor shall the Escrow Agent be required to determine if any Person Party has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreementother agreement. Notwithstanding the terms of any other agreement between the Partiesagreement, the terms and conditions of this Agreement will shall control the actions of the Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting any written notice, document, instruction or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably request delivered by the Parties believed by it to be genuine and to have been signed and presented by an authorized signer Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. The 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. The Any notice, document, instruction or request delivered by a Party but not contemplated under this Agreement may be disregarded by Escrow Agent. ESCROW AGENT SHALL NOT BE LIABLE FOR ANY ACTION TAKEN, SUFFERED OR OMITTED TO BE TAKEN BY IT IN GOOD FAITH EXCEPT TO THE EXTENT THAT ESCROW AGENT'S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT WAS THE CAUSE OF ANY DIRECT LOSS TO EITHER PARTY. Escrow Agent may 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, or believes there is some ambiguity, as to its duties or rights hereunder or receives instructions, claims or demands from any 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 executed by Authorized Representatives of the Parties which eliminates such ambiguity or conflict or (ii) a court order issued by a court of competent jurisdiction (it being understood that Escrow Agent shall be entitled conclusively to rely and act 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. Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that Accounts, including, without limitation, the Escrow Agent Amount nor shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from have any and all liability duty or obligation with respect to such interpleaded assets confirm or any action verify the accuracy or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event correctness of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties amounts deposited with it hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted Parties grant to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything lien and security interest in this Agreement to the contrary notwithstanding, in no event shall the Escrow Amount in order to secure any indemnification obligations of the Parties or obligation for fees or expenses owed to Escrow Agent be liablehereunder. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, for any specialIN NO EVENT SHALL ESCROW AGENT BE LIABLE FOR SPECIAL, indirectINCIDENTAL, punitivePUNITIVE, incidental, or consequential losses or damages of any kind whatsoever INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER (including but not limited to lost profitsINCLUDING BUT NOT LIMITED TO LOST PROFITS), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of actionEVEN IF ESCROW AGENT HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION.
Appears in 2 contracts
Sources: Merger Agreement (Zurn Water Solutions Corp), Merger Agreement (Zurn Water Solutions Corp)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in natureresponsible only for the performance of the duties and obligations expressly imposed upon it under this Agreement. Without prejudice to the generality of the foregoing sentence, the Parties confirm and no dutiesagree that the Escrow Agent is not a party to the Management Indemnity Agreement, including but not limited the SPA or any other transaction document and, therefore, the Escrow Agent is neither entitled nor obliged to review and verify compliance of any fiduciary duty, shall be impliedInstruction under this Agreement with any transaction document. The Escrow Agent shall neither not be responsible for, nor chargeable with, knowledge of, nor have obliged to verify the correctness of any requirements to comply withcalculations or the amounts presented by the Sellers’ Claims Representative in any Instruction. The Escrow Agent shall act with professional care when performing its obligations under this Agreement. To the extent allowed by the applicable laws, the terms Sellers' Claims Representative agrees to indemnify and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall hold the Escrow Agent be required harmless against and with respect to, any and all losses, liabilities, damages, or expenses (including, without limitation, reasonable attorneys’ fees and costs), except for any lost profit, that the Escrow Agent may suffer or incur in connection with the entering into this Agreement and the performance of its obligations under this Agreement or otherwise in connection with this Agreement, except to determine if any Person has complied with the extent any such agreementsloss, nor liability, damage or expense arises from a breach of the Escrow Agent’s obligations hereunder or the Escrow Agent’s gross negligence or willful misconduct. The Escrow Agent, acting with due professional care, may accept, and rely on, any signed notice, instruction, judgement or other document received by it under this Agreement that appears to have been executed by the Sellers’ Claims Representative or any Eligible Manager as the case may be, required hereunder to sign it, as conclusive evidence of the facts and of the validity of the instructions stated in it and as having been duly authorized, executed and delivered, need not to make enquiry in relation thereto and may accept as such, and rely on, without enquiry to any document purporting to be such notice, instruction or other document. Notwithstanding anything in this Agreement, the Escrow Agent shall verify that the documents on the basis of which it shall distribute any additional funds from the Escrow Account appear to be the documents described in this Agreement. The Escrow Agent, acting with due professional care, shall not be responsible or liable for the sufficiency, correctness, genuineness or validity of any notice or other document received, or for the form of execution of such notice or other document, or for the identity or authority or right of any person or party executing or giving it. The Escrow Agent shall have no obligation to verify the authority of the Sellers’ Claims Representative to represent the Sellers under or in connection with this Agreement. The Escrow Agent is entitled to terminate this Agreement by a written notice delivered to the Sellers’ Claims Representative, with a notice period of at least thirty (30) Business Days and such termination is not effective until a new agent is appointed to carry out the rights and obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in under this Agreement. Notwithstanding For the terms avoidance of any other agreement between the Partiesdoubts, the terms Parties agree and conditions state that the delivery of termination written notice by the Escrow Agent to the Sellers’ Claims Representative shall be sufficient vis-à-vis the Sellers for the termination of this Agreement will control by the actions Escrow Agent pursuant to the previous sentence and, therefore, delivery of the Escrow Agent. The Escrow Agent may rely upon and termination written notice to all Sellers shall not be liable required for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided such a termination by the Escrow Agent. The Escrow Agent shall be under procure that during the term of this Agreement no duty to inquire into or investigate other funds are deposited on the validity, accuracy or content of Escrow Account – any such document, notice, instruction or requestreceived funds are to be returned to the account from which they were transferred. The Escrow Agent shall have no duty to solicit any payments which may Parties acknowledge that information regarding this Agreement will be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection registered in the event Electronic Registry of any dispute or question as to Escrows, maintained by the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of actionCzech Bar Association.
Appears in 2 contracts
Sources: Indemnification Agreement, Indemnification Agreement
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Generator Interconnection Study Process Agreement (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of the Underlying Agreement, any schedule or exhibit attached to the Agreement, or any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. The and Escrow Agent shall be under have no duty of inquiry and no obligation to inquire into or investigate the validity, accuracy or content require substantiating evidence of any such document, notice, instruction or requestkind. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Fund, including, without limitation, the Escrow FundsDeposit, 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 2 contracts
Sources: Escrow Agreement, Escrow Agreement
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the PartiesParent and LPHL and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Agreement, Underlying Agreement or nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of the Underlying Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between the PartiesParent and LPHL and any other person or entity, the terms and conditions of this Agreement will control the actions of the Escrow Agent. shall control.
(b) The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer the person or persons designated on Schedule 1 hereto on behalf of Parent and LPHL without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any of Parent, LPHL or the Indemnitees or any other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Shares, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 10 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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.
(c) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct or the Escrow Agent’s material breach of this Agreement was the primary cause of any loss to any of Parent, LPHL or the Indemnitees. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall have no duty not be liable for any action taken, suffered or omitted to solicit be taken by it in accordance with, or in reliance upon, the advice or opinion of any payments which may be due it such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to any of Parent, LPHL or the Escrow FundsIndemnitees. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto Parent or LPHL which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held the Escrow Shares in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of the Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of actionjurisdiction.
Appears in 2 contracts
Sources: Escrow Agreement (China Cardiovascular Focus LTD), Escrow Agreement (LPH Investments LTD)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the PartiesParent or Sponsor and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Agreement, Merger Agreement or nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of the Merger Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between the PartiesParent or Sponsor and any other person or entity, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer the applicable person without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Shares, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 10 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due it or the Escrow FundsShares 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s fraud, gross negligence or willful misconduct was the primary cause of any loss. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith, in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s fraud, gross negligence or willful misconduct was the primary cause of any loss. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of the Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of actionjurisdiction.
Appears in 2 contracts
Sources: Merger Agreement (FS Development Corp.), Escrow Agreement (FS Development Corp.)
Escrow Agent. (a) The duties of the Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which hereunder shall be deemed purely ministerial in nature, and . Under no duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall circumstances will the Escrow Agent be required deemed to determine if any Person has complied with any such agreements, nor shall any additional obligations of be a fiduciary to Buyer or the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of Securityholder Representative or any other agreement between the Parties, the terms and conditions of person under this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. The Escrow Agent shall be under no duty obligated to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or requestact only as specifically set forth in this Agreement. The Escrow Agent shall have no duty is hereby authorized to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict comply with any orders, judgments or decrees of any arbitrator and of any court and shall not be liable as a result of its compliance with the provisions same.
(b) As to any 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 good faith in reliance on such opinions.
(c) Absent fraud, gross negligence, bad faith or willful misconduct on the part of the Escrow Agent, 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 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.
(e) The Escrow Agent shall be entitled to refrain from taking any action contemplated by this Agreement in the event it becomes aware of any dispute between the Securityholder Representative and its sole obligation Buyer as to any material facts or as to the happening of any event.
(f) All fees of the Escrow Agent for the services provided by the Escrow Agent under this Agreement are set forth on Exhibit C hereto. All such fees shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all paid 50% by Buyer and 50% by the assets held hereunder into a court Securityholder Representative (on behalf of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the Securityholders).
(g) In the event of any dispute disagreement among the parties hereto resulting in adverse claims or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse demands being made in connection with any dispute (other than with respect to a dispute involving portion of the Escrow Agent) without making Amount as a result of which the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstandingis, in no event shall good faith, in reasonable doubt as to what action it should take hereunder, the Escrow Agent shall be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited entitled to lost profits), even if retain the Escrow Amount until the Escrow Agent has been advised shall have received (i) a Final Order directing delivery of the likelihood of Escrow Amount, or (ii) a Joint Written Notice, in which event Escrow Agent shall disburse such losses or damages and regardless portion of the form Escrow Amount in accordance with such Final Order or Joint Written Notice. Notwithstanding the foregoing, at any time the Escrow Agent may file an interpleader action in any court of competent jurisdiction, and upon the filing thereof, the Escrow Agent shall be relieved of all liability as to the Escrow Amount and shall be entitled to recover reasonable attorneys’ fees, expenses and other costs incurred in commencing and maintaining any such interpleader action.
Appears in 2 contracts
Sources: Unit Purchase Agreement (LendingTree, Inc.), Unit Purchase Agreement (LendingTree, Inc.)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no other duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Instruction or Final Determination, or Objection Notice Determination furnished to it hereunder and reasonably believed by it in good faith to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by in the Escrow Agentform of Exhibit A-1 and Exhibit A-2. 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; provided, however, that the Escrow Agent may not act upon instruction by either the Parent or the Holder Representative alone where Joint Written Instruction is required as provided hereunder. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow FundsProperty. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any either Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to (a) refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Instruction or Final Determination, Determination or Objection Notice. The Escrow Agent may (b) interplead all of the assets held hereunder into into, or may seek other judicial relief or orders from, a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstancesjurisdiction, and thereafter be fully relieved from the Escrow Agent shall act in accordance with any and all liability such judicial relief or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentcourt order. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be 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 fraud, gross negligence, negligence or willful misconduct was the direct cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any commercially reasonable redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, except in the case of the Escrow Agent’s fraud, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 2 contracts
Sources: Escrow Agreement (Tattooed Chef, Inc.), Merger Agreement (Forum Merger II Corp)
Escrow Agent. (a) The Escrow Agent, ▇▇▇▇▇ ▇▇▇▇▇▇, Spinco and the Voyager Stockholders’ Representative shall cooperate in all respects with one another in the calculation of any amounts determined to be transferred or distributed to Spinco and the Voyager Stockholders in accordance with this Agreement and the Merger Agreement and in implementing the procedures necessary to effect such payments.
(b) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between ▇▇▇▇▇ ▇▇▇▇▇▇, Spinco and the PartiesVoyager Stockholders’ Representative and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Merger Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of the Merger Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between ▇▇▇▇▇ ▇▇▇▇▇▇, Spinco and the PartiesVoyager Stockholders’ Representative and any other person or entity, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been jointly signed and or presented by an authorized signer ▇▇▇▇▇ ▇▇▇▇▇▇, Spinco and the Voyager Stockholders’ Representative without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to ▇▇▇▇▇ ▇▇▇▇▇▇, Spinco, the Voyager Stockholders’ Representative, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrowed Shares, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 12 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 12. 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 have no duty to solicit any payments which may be due to it or the Escrowed Shares nor shall the Escrow FundsAgent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder.
(c) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the rights or powers conferred upon it by this Agreement except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence, willful misconduct or fraud was the primary cause of any loss to any party hereto, any other beneficiary of this Agreement or any of their respective representatives. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the opinion of any such counsel, except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence, willful misconduct or fraud was the primary cause of any loss to any party hereto, any other beneficiary of this Agreement or any of their respective representatives. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive joint instructions, claims or demands from any Party hereto ▇▇▇▇▇ ▇▇▇▇▇▇, Spinco and the Voyager Stockholders’ Representative which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of the Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstancesand each of ▇▇▇▇▇ ▇▇▇▇▇▇, Spinco and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties Voyager Stockholders’ Representative agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 2 contracts
Sources: Escrow Agreement (Covetrus, Inc.), Escrow Agreement (HS Spinco, Inc.)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth hereinin this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no duties, including but other duties shall be implied. The Escrow Agent shall not limited be subject to any fiduciary dutyor other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall be impliednot have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between the Partiesor among any Loan Party and any Lender, in connection herewith, if anyherewith or otherwise, including without limitation any other Loan Document and including the Business Combination Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made except to the extent such provisions are repeated in this Agreement. Notwithstanding Section 2.21 or in the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow AgentAleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or PartiesDesignated Company. Concurrent with On the execution of this AgreementAleris Increase Joinder Effective Date, the Parties Designated Company shall deliver to the Escrow Agent authorized signers’ forms as provided by in the Escrow Agentform of Exhibit A to the Aleris Increase Joinder Amendment. 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 have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrow FundsEscrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto Person which, in its opinion, conflict with any of the provisions of this AgreementSection 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property the Escrowed Amounts held in escrow until it shall be directed otherwise in given a Joint Release Instruction, Final Determination, or Objection Noticejoint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the assets held hereunder Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunderhereunder or thereunder. The Escrow Agent will not be liable for any action taken, suffered shall have no liability or omitted to be taken by it in good faith except obligation with respect to the extent that Escrowed Amounts except for the Escrow Agent’s fraud, willful misconduct or gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21.
Appears in 2 contracts
Sources: Credit Agreement (Novelis Inc.), Credit Agreement (Novelis Inc.)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Partiesparties and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Merger Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding .
(b) In the event of any conflict between the terms and provisions of this Agreement with those of the Merger Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between among the Partiesparties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. shall control.
(c) The Escrow Agent may rely upon upon, and shall not be liable for acting or refraining from acting upon upon, any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer any of the proper Party parties without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary, or Parties. Concurrent with other person or entity, for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementthe Escrow Shares, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 10 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 11. 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 have no duty to solicit any payments which may be due due, 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.
(d) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s fraud, gross negligence or willful misconduct was the primary cause of any loss to any party hereto or any beneficiary of the Escrow Shares. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents.
(e) The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s fraud, gross negligence or willful misconduct was the primary cause of any loss to any of the parties hereto or any beneficiary or the Escrow FundsShares. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instructionwriting which eliminates such ambiguity or uncertainty to the satisfaction of the Escrow Agent, Final Determination, until an Order or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into judgement of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 2 contracts
Sources: Earnout Escrow Agreement (SRIVARU Holding LTD), Earnout Escrow Agreement (SRIVARU Holding LTD)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Partiesparties and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Merger Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding .
(b) In the event of any conflict between the terms and provisions of this Agreement with those of the Merger Agreement or the Earnout Sponsor Agreement (as applicable), any schedule or exhibit attached to this Agreement, or any other agreement between among the Partiesparties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. shall control.
(c) The Escrow Agent may rely upon upon, and shall not be liable for acting or refraining from acting upon upon, any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer any of the proper Party parties without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary, or Parties. Concurrent with other person or entity, for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementthe Escrow Shares, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 9 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due due, 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.
(d) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s fraud, gross negligence or willful misconduct was the primary cause of any loss to any party hereto or any beneficiary of the Escrow Shares. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents.
(e) The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s fraud, gross negligence or willful misconduct was the primary cause of any loss to any of the parties hereto or any beneficiary or the Escrow FundsShares. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instructionwriting which eliminates such ambiguity or uncertainty to the satisfaction of the Escrow Agent, Final Determination, until an Order or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into judgement of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 2 contracts
Sources: Merger Agreement (Abri SPAC I, Inc.), Earnout Escrow Agreement (Abri SPAC I, Inc.)
Escrow Agent. The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no other duties, including but not limited to any fiduciary duty, shall be implied. The Notwithstanding anything to the contrary, Escrow Agent shall neither be responsible for, nor chargeable with, has no knowledge of, nor have any requirements obligation to comply with, the terms and conditions of any other agreement, instrument or document between Escrow Agent shall not be responsible for determining the Parties, in connection herewith, if any, including without limitation the Business Combination Agreementmeaning of any capitalized term not entirely defined herein, nor shall the Escrow Agent be required to determine if any Person Party has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreementother agreement. Notwithstanding the terms of any other agreement between the Partiesagreement, the terms and conditions of this Agreement will shall control the actions of the Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting any written notice, document, instruction or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably request delivered by the Parties believed by it to be genuine and to have been signed and presented by an authorized signer Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. The 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. The Any notice, document, instruction or request delivered by a Party but not required under this Agreement may be disregarded by Escrow Agent. Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, 's gross negligence, negligence or willful misconduct was the cause of any direct loss to either Party. To Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the extent practicableevent 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 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 executed by Authorized Representatives of the Parties which eliminates such ambiguity or conflict or (ii) a court order issued by a court of competent jurisdiction (it being understood that Escrow Agent shall be entitled conclusively to rely and act 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. Escrow Agent shall have no duty to solicit any payments which may be due it or the Fund, including, without limitation, the Escrow 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. The Parties agree grant to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party lien and security interest in the Fund in order to secure any indemnification obligations of the sameParties or obligation for fees or expenses owed to Escrow Agent hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 2 contracts
Sources: Consent and Limited Waiver Agreement (Aytu Bioscience, Inc), Consent and Limited Waiver Agreement (Aytu Bioscience, Inc)
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 Lender agree from time to time and at all times hereafter to save, defend, hold 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 Stock Cancellation 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 Section 4.2 against its costs of such proceedings.
4.4 The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial will have no responsibility in nature, and no duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions respect of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations loss of the Escrow Agent be inferred from Stock Cancellation Documents except the terms of duty to exercise such agreements, even though reference thereto may be made care in this Agreement. Notwithstanding the terms of any other agreement between safekeeping thereof as it would exercise if the Parties, the terms and conditions of this Agreement will control the actions of Stock Cancellation Documents belonged to the Escrow Agent. The Escrow Agent may rely upon and shall act on the advice of counsel but will not be liable responsible for acting or refraining from acting upon failing to act on the advice of counsel.
4.5 The Escrow Agent will not be bound in any Joint Release Instructionway 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, Final Determination, or Objection Notice furnished to it hereunder liability and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer responsibility of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall will be to keep safely all property held in escrow until it shall be hold the Stock Cancellation Documents as herein directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all and to deliver the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect same to such interpleaded assets or any action or nonaction based on persons and to comply with other such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question conditions as to the meaning or construction of any of the provisions hereof or its duties hereunderare herein set forth. The Escrow Agent will not be liable for required to pass upon the sufficiency of any action takenof the written notices pursuant to Section 2 or the Stock Cancellation Documents to ascertain whether or not the person or persons who have executed, suffered signed or omitted otherwise issued or authenticated the said documents have authority to be taken by it in good faith except to so execute, sign or otherwise authorize, issue or authenticate the extent that Escrow Agent’s fraud, gross negligencesaid documents or any of them, or willful misconduct was that they are the cause 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 the Escrow Agent as specified in this Agreement.
4.6 In the event that the Stock Cancellation Documents are attached, garnished or levied upon under any direct loss to either Party. To court order, or if the extent practicabledelivery of the Stock Cancellation Documents is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting the Parties agree to pursue Stock Cancellation Documents or affecting any redress or recourse in connection with any dispute (other than with respect to a dispute involving act by the Escrow Agent) without making , the Escrow Agent a party to the same. Anything 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 notwithstanding, in no event shall contrary. If the Escrow Agent obeys and complies with any such writs, orders, judgments or decrees, it will not be liableliable to any of the parties hereto or to any other person, for firm, corporation or other entity 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 specialand all notices and warnings which may be given to it by any of the parties hereto or by any other person, indirectfirm, punitiveassociation or corporation. It will, incidentalhowever, at its sole discretion, obey the order, judgment or consequential losses or damages decree of any kind whatsoever (including but 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 limited be liable by reason thereof to lost profits)any of the parties hereto or to any other person, firm, association, corporation or other entity, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated.
4.8 If the Escrow Agent has been advised receives any valid court order contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Stock Cancellation Documents until the lawful determination of the likelihood issue between the parties hereto.
4.9 If written notice of such losses or damages and regardless protest is made by either of the form Company and/or the Lender to the Escrow Agent to any action contemplated by the Escrow Agent under this Agreement, and such notice sets out reasons for such protest, the Escrow Agent may, at its sole discretion, continue to hold the Stock Cancellation Documents until the right to the Stock Cancellation Documents is legally determined by a court of actioncompetent jurisdiction or otherwise.
4.10 The Escrow Agent may resign as Escrow Agent by giving not less than five (5) days’ notice thereof to the Company and the Lender. The Company may terminate the Escrow Agent by giving not less than five (5) 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 five (5) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent and/or 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. In the event of termination or resignation of the Escrow Agent for any reason, the Escrow Agent shall, within that five (5) days’ notice period, deliver the Stock Cancellation Documents to the new escrow agent to be named by the Company.
4.11 Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given jointly by the Company and the Lender.
4.12 Notwithstanding anything herein to the contrary, in the event of any dispute arising between either of the Company and/or the Lender pertaining to this Agreement or any matters arising pursuant hereto, the Escrow Agent may, in its sole discretion, deliver and interplead the Stock Cancellation Documents into court and such delivery and interpleading will be an effective discharge to the Escrow Agent.
Appears in 2 contracts
Sources: Escrow Agreement (ALKALINE WATER Co INC), Escrow Agreement (ALKALINE WATER Co INC)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Partiesbetween_______________________ and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Agreement, Underlying Agreement or nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding .
(b) In the event of any conflict between the terms and provisions of this Agreement, those of the Underlying Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between the Partiesbetween______________ and_______________ or any other person or entity, the terms and conditions of this Agreement will control the actions of the Escrow Agent. shall control.
(c) The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer the__________________ without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Shares, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 9 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due 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.
(d) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to either______________ or the beneficiary. The Escrow FundsAgent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents.
(e) The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to either_______________ or the beneficiary. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of the Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgement of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree jurisdiction_____________ agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 2 contracts
Sources: Merger Agreement (DFP Healthcare Acquisitions Corp.), Stockholder Support Agreement (DFP Healthcare Acquisitions Corp.)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between Pubco and the PartiesSPAC Representative and any other Person, in connection herewith, if any, including without limitation the Business Combination Agreement, Agreement or nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding .
(b) In the event of any conflict between the terms and provisions of this Agreement, those of the Business Combination Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between Pubco and the PartiesSPAC Representative or any other Person, the terms and conditions of this Agreement will control the actions of the Escrow Agent. shall control.
(c) The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer ▇▇▇▇▇ and the SPAC Representative jointly without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary or other Person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Shares, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 9 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due 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.
(d) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either Pubco, the SPAC Representative or the Company Shareholders. The Escrow FundsAgent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents.
(e) The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either Pubco, the SPAC Representative or the Company Shareholders. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto Pubco and the SPAC Representative jointly, which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of the Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgement of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, Pubco and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties SPAC Representative agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 2 contracts
Sources: Share Escrow Agreement (PS International Group Ltd.), Share Escrow Agreement (AIB Acquisition Corp)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the PartiesSphere and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Underlying Agreement or any Overland RSU Agreement assumed by Sphere pursuant to the Underlying Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of the Underlying Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between the PartiesSphere and any other person or entity, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer the Sphere without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to Sphere, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Asset, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 10 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due it or the Escrow FundsAsset 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either Sphere or the beneficiary. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either Sphere or the beneficiary. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party Sphere hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of the Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree Sphere agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Sources: Escrow Agreement (Sphere 3D Corp)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of the Underlying Agreement or any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreementsUnderlying Agreement, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreementsany Underlying Agreement, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of any Underlying Agreement, any schedule or exhibit attached to the Agreement, or any other agreement between among the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or PartiesParties without inquiry and without requiring substantiating evidence of any kind. Concurrent with The Escrow Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementthe Fund, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 11 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required thereunder. 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 have no duty to solicit any payments which may be due it or the Fund, including, without limitation, the Escrow FundsDeposit 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the cause of any loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 1 contract
Sources: International Daywork Drilling Contract (Cobalt International Energy, Inc.)
Escrow Agent. The a. Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding Escrow Agent shall not be deemed to have any implied duties or obligations under or related to this Agreement.
b. Escrow Agent may: (a) act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine; (b) assume the terms validity and accuracy of any other agreement between statement or assertion contained in such a writing or instrument; and (c) assume that any person purporting to give any writing, notice, advice or instructions in connection with the Parties, the terms and conditions provisions of this Agreement will control the actions of the Escrow Agenthas been duly authorized to do so. The Escrow Agent may rely upon and shall not be liable in any manner for acting the sufficiency or refraining from acting upon any Joint Release Instructioncorrectness as to form, Final Determinationmanner of execution, or Objection Notice furnished validity of any instrument deposited in escrow, nor as to the identity, authority, or right of any person executing any instrument; Escrow Agent’s duties under this Agreement are and shall be limited to those duties specifically provided in this Agreement.
c. To the extent permitted by law, the parties to this Agreement do and shall indemnify Escrow Agent and hold it hereunder harmless from any and reasonably believed all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or other expenses, fees, or charges of any character or nature, including attorneys’ fees and costs, which it may incur or with which it may be threatened by it reason of its action as Escrow Agent under this Agreement, except for such matters which are the result of Escrow Agent’s gross negligence or willful malfeasance. Nothing herein shall be deemed to be genuine a waiver of Seller’s rights, privileges, and to have been signed and presented by an authorized signer of immunities as set forth in Section 768.28, Florida Statutes.
d. If the proper Party or Parties. Concurrent with parties (including Escrow Agent) shall be in disagreement about the execution interpretation of this Agreement, or about their respective rights and obligations, or about the Parties shall deliver to the propriety of any action contemplated by Escrow Agent, Escrow Agent authorized signers’ forms as provided by may, but shall not be required to, file an action in interpleader to resolve the Escrow Agent. The disagreement; upon filing such action, Escrow Agent shall be released from all obligations under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or requestthis Agreement. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructionsindemnified for all costs and reasonable attorneys’ fees, claims or demands from any Party hereto whichincluding those for appellate matters and for paralegals and similar persons, incurred in its opinion, conflict capacity as escrow agent in connection with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The such interpleader action; Escrow Agent may interplead represent itself in any such interpleader action and charge its usual and customary legal fees for such representation, and the court shall award such attorneys’ fees, including those for appellate matters and for paralegals and similar persons, to Escrow Agent from the losing party. Escrow Agent shall be fully protected in suspending all or part of its activities under this Agreement until a final judgment in the assets held hereunder into interpleader action is received.
e. Escrow Agent may resign upon five (5) calendar days’ written notice to Seller and Purchaser. If a successor escrow agent is not appointed jointly by Seller and Purchaser within the five (5) calendar-day period, Escrow Agent may petition a court of competent jurisdiction or may seek to name a declaratory judgment successor.
f. Seller and Purchaser acknowledge and agree that Escrow Agent is the law firm representing Purchaser with regard to this Agreement and the transaction which is the subject hereof, and hereby waive any claim against Escrow Agent based upon a conflict of interest as a result of Escrow Agent serving in such dual capacities, excluding only actions by Escrow Agent constituting knowing and intentional misconduct. Seller further agrees that Escrow Agent shall be permitted to represent Purchaser in all aspects of this Agreement and the subject transaction, including, without limitation, any dispute with respect to certain circumstances, the Deposit.
g. The provisions of this Section shall survive the Closing and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel also the cancellation of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of actionAgreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Investor Rights Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice Instruction furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties, except in the event of Escrow Agent’s fraud, gross negligence or willful misconduct. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by in the Escrow Agentform of Exhibit A-1 and Exhibit A-2 attached hereto. 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 have no duty to solicit any payments which may be due it or the Escrow FundsEscrowed Property. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may may, after 10 days’ notice to the Parties of intention to do so, interplead all of the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection at its sole cost and expense in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable shall have no liability or obligation for any action taken, suffered or omitted to be taken by it in good faith except with respect to the extent that Escrowed Property except for the Escrow Agent’s fraud, willful misconduct or gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any special, indirect, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth hereinin this Agreement on its part to be performed, which shall be deemed purely ministerial in nature, and no duties, including but not limited to other duties or obligations of any fiduciary duty, kind shall be impliedimplied nor read into this Agreement against or on the part of the Escrow Agent. The Escrow Agent accepts the duties and responsibilities under this Agreement as agent only, and no trust is intended to be, or is or will be, created hereby and the Escrow Agent shall owe no duties hereunder as trustee. The Escrow Agent shall neither be responsible for, nor chargeable with, with knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Underlying Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of the Underlying Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between among the Parties, the terms and conditions of this Agreement will shall control the actions of only in connection with any matter related to the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or PartiesParties without inquiry and without requiring substantiating evidence of any kind. Concurrent with The Escrow Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementthe Escrow Assets, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 10 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due it or the Escrow FundsAssets 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reasonable reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, are ambiguous or conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Sources: Escrow Agreement (Klein Benjamin)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements requirement to comply with, the terms and conditions of any other agreement, instrument or document between among the PartiesPurchaser CEO Representative, the Purchaser, the Seller Representative, and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Merger Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding .
(b) In the event of any conflict between the terms and provisions of this Agreement, those of the Merger Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between among the PartiesPurchaser CEO Representative, the Purchaser, the Seller Representative, or any other person or entity, the terms and conditions of this Agreement will control the actions of the Escrow Agent. shall control.
(c) The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder in accordance with the terms hereof and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer the Purchaser CEO Representative, the Purchaser and the Seller Representative without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Property, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 9 and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due it or nor shall the Escrow FundsAgent have any duty or obligation to confirm or verify the accuracy or correctness of any shares deposited with it hereunder.
(d) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to a beneficiary. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents.
(e) The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to a beneficiary. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto the Purchaser CEO Representative, or the Seller Representative which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow of the Escrow Property until it shall be directed otherwise given a joint direction in a Joint Release Instruction, Final Determination, writing by the Purchaser CEO Representative and the Seller Representative that eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of the Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgement of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree Purchaser CEO Representative agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Sources: Share Escrow Agreement (Trump Media & Technology Group Corp.)
Escrow Agent. To induce Mintz Levin Cohn Ferris Glovsky and Popeo, P.C. to serve as the esc▇▇▇ ▇g▇▇▇ ▇n▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇pacit▇ ▇▇▇eunder, it is agreed by the parties hereto that:
8.1 The Escrow Agent undertakes escrow agent shall not be under any duty to perform only such 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 as are expressly set forth herein, which of the escrow agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be deemed purely ministerial read into this Agreement against the escrow agent. The escrow agent shall not be bound by the provisions of any agreement among the other parties hereto except this Section 8 of this Agreement.
8.3 The escrow agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the escrow agent, the other parties hereto shall jointly and severally indemnify and hold harmless the escrow agent from and against any and all losses, liabilities, claims, actions, damages and expenses, including, without limitation, reasonable attorneys' fees and disbursements, arising out of or in nature, and no duties, including but not limited to any fiduciary duty, connection with this Agreement.
8.4 The escrow agent shall be implied. The Escrow Agent shall neither be responsible forentitled to rely upon any order, nor chargeable withjudgment, knowledge ofcertification, nor have any requirements to comply withdemand, the terms and conditions of any other agreementnotice, instrument or document between the Parties, in connection herewith, if any, including other writing delivered to it hereunder without limitation the Business Combination Agreement, nor shall the Escrow Agent be being required to determine if the authenticity or the correctness of any Person has complied with any such agreements, nor shall any additional obligations fact stated therein or the propriety or validity of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agentservice thereof. The Escrow Agent escrow agent may rely upon and shall not be liable for acting or refraining from acting act in reliance upon any Joint Release Instruction, Final Determination, instrument or Objection Notice furnished to it hereunder and reasonably signature believed by it to be genuine and may assume that any person purporting to have been signed and presented by an authorized signer of the proper Party give receipt or Parties. Concurrent advice or make any statement or execute any document in connection with the execution of this Agreement, the Parties shall deliver provisions hereof has been duly authorized to do so.
8.5 The escrow agent may act pursuant to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. The Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content advice of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment counsel with respect to certain circumstances, any matter relating to this Agreement and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will shall not be liable for any action taken, suffered taken or omitted to be taken 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 it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse escrow agent in connection with any dispute (this Agreement and transfer taxes or other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party taxes relating to the same. Anything Escrowed Property incurred in this Agreement connection herewith and shall indemnify and hold harmless the escrow agent from any amounts that it is obligated to pay in the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood way of such losses expenses and taxes. The escrow agent shall first seek such payment or damages reimbursement from the Company, and regardless of in the form of action.event is unable to do so, shall seek such payment and reimbursement from the Investors. This
Appears in 1 contract
Sources: Securities Purchase Agreement (Palatin Technologies Inc)
Escrow Agent. The parties hereto agree that Escrow Agent’s only obligations hereunder shall be to hold the Escrowed Funds as Escrow Agent undertakes hereunder and to perform only such duties disburse said funds pursuant to the terms of this Agreement. Tenant and Landlord acknowledge that Escrow Agent is acting solely as are expressly set forth hereina stakeholder at their request and for their convenience, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, shall be implied. The that Escrow Agent shall neither not be responsible for, nor chargeable with, knowledge of, nor have any requirements deemed to comply with, be the terms and conditions agent of any other agreementof the parties hereto, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the and that Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon to any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party parties hereto for any act or Parties. Concurrent with the execution omission on its part unless taken or suffered in bad faith, in willful disregard of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow AgentAgreement or involving negligence. 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 have no duty to solicit responsibility for, and shall not be concerned with, any payments which may be due it or agreements between the Escrow Funds. In the event that the Escrow Agent shall be uncertain parties hereto, except as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, specifically provided in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all any matter of this escrow at any time in regard to any controversy among the assets held hereunder into parties which cannot be resolved in a court reasonable time among the parties, as to appropriate interpretation of competent jurisdiction these instructions or may seek distribution of funds in said escrow account which cannot be resolved in a declaratory judgment with respect reasonable time, or in regard to certain circumstances, any suit on this escrow brought against Escrow Agent from any source. The parties hereto shall indemnify Escrow Agent and thereafter be fully relieved hold Escrow Agent harmless from and against any and all liability actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or obligation in any way connected with respect to such interpleaded assets the holding of the Escrowed Funds excepting, however, the breach, negligence or any action or nonaction based on such declaratory judgment. The willful misconduct of Escrow Agent may consult with legal counsel of its selection in the event performance of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Sources: Lease (Polycom Inc)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the PartiesCompany, the Sponsor, TipTop and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Merger Agreement or the Assurance Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding .
(b) In the event of any conflict between the terms and provisions of this Agreement with those of the Merger Agreement or the Assurance Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between the PartiesCompany, the Sponsor, TipTop or any other person or entity related to the Escrow Agent’s duties hereunder, the terms and conditions of this Agreement will control the actions of the Escrow Agent. shall control.
(c) The Escrow Agent may rely upon upon, and shall not be liable for acting or refraining from acting upon upon, any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer the Company, TipTop or the Sponsor without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary, or other person or entity, for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Shares, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 10 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 11. 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 have no duty to solicit any payments which may be due it or nor shall the Escrow FundsAgent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder.
(d) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's fraud, gross negligence or willful misconduct was the primary cause of any loss to either the Company, TipTop, the Sponsor or any beneficiary of the Escrow Shares. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents.
(e) The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's fraud, gross negligence or willful misconduct was the primary cause of any loss to either the Company, TipTop, the Sponsor or any beneficiary of the Escrow Shares. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instructionwriting which eliminates such ambiguity or uncertainty to the satisfaction of the Escrow Agent, Final Determination, until an Order or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into judgement of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between Parent, the PartiesCompany Representative and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Merger Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding
(b) In the event of any conflict between the terms and provisions of this Agreement with those of the Merger Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between Parent, the PartiesCompany Representative or any other person or entity related to the Escrow Agent’s duties hereunder, the terms and conditions of this Agreement will control the actions of the Escrow Agent. shall control.
(c) The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer Parent or the Company Representative without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Shares, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 9 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due 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.
(d) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to either Parent, the Company Representative or any beneficiary or the Escrow FundsShares. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents.
(e) The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to either Parent, the Company Representative or any beneficiary or the Escrow Shares. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instructionwriting which eliminates such ambiguity or uncertainty to the satisfaction of the Escrow Agent, Final Determination, until an Order or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into judgement of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, Parties in connection herewith, if any, including without limitation the Business Combination Acquisition Agreement (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Escrow Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Escrow Agreement, those of the Underlying Agreement, any schedule or exhibit attached to the Escrow Agreement, or any other agreement between among the Parties, the terms and conditions of this Escrow Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer Parent and the Designated Monitor without inquiry and without requiring substantiating evidence of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agentany kind. 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 have no duty to solicit any payments which may be due it or the Escrowed Assets nor shall the Escrow FundsAgent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s fraud, gross negligence or willful misconduct was the primary cause of any loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through attorneys, and shall be liable only for its fraud, gross negligence or willful misconduct (as finally adjudicated in a court of competent jurisdiction) in the selection of any such attorney. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party party hereto which, in its opinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by Parent and the Designated Monitor which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no other duties, including but not limited to any fiduciary duty, shall be implied. The Notwithstanding anything to the contrary, Escrow Agent shall neither be responsible for, nor chargeable with, has no knowledge of, nor have any requirements obligation to comply with, the terms and conditions of any other agreement, instrument or document between Escrow Agent shall not be responsible for determining the Parties, in connection herewith, if any, including without limitation the Business Combination Agreementmeaning of any capitalized term not entirely defined herein, nor shall the Escrow Agent be required to determine if any Person Party has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreementother agreement. Notwithstanding the terms of any other agreement between the Partiesagreement, the terms and conditions of this Agreement will shall control the actions of the Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting any written notice, document, instruction or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably request delivered by the Parties believed by it to be genuine and to have been signed and presented by an authorized signer Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. The 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. The Any notice, document, instruction or request delivered by a Party but not required under this Agreement may be disregarded by Escrow Agent. ESCROW AGENT SHALL NOT BE LIABLE FOR ANY ACTION TAKEN, SUFFERED OR OMITTED TO BE TAKEN BY IT IN GOOD FAITH EXCEPT TO THE EXTENT THAT ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT WAS THE CAUSE OF ANY DIRECT LOSS TO EITHER PARTY. Escrow Agent may 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, or believes there is some ambiguity, as to its duties or rights hereunder or receives instructions, claims or demands from any 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 executed by Authorized Representatives of the Parties which eliminates such ambiguity or conflict or (ii) a court order issued by a court of competent jurisdiction (it being understood that Escrow Agent shall be entitled conclusively to rely and act 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. Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that Fund, including, without limitation, the Escrow Agent Deposit nor shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from have any and all liability duty or obligation with respect to such interpleaded assets confirm or any action verify the accuracy or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event correctness of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties amounts deposited with it hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted Parties grant to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party lien and security interest in the Fund in order to secure any indemnification obligations of the same. Anything in this Agreement Parties or obligation for fees or expenses owed to the contrary notwithstanding, in no event shall the Escrow Agent be liablehereunder. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, for any specialIN NO EVENT SHALL ESCROW AGENT BE LIABLE FOR SPECIAL, indirectINCIDENTAL, punitivePUNITIVE, incidental, or consequential losses or damages of any kind whatsoever INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER (including but not limited to lost profitsINCLUDING BUT NOT LIMITED TO LOST PROFITS), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of actionEVEN 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: Membership Interest Purchase Agreement (ProFrac Holding Corp.)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between to which the Parties, Designated Monitor is a party in connection herewith, if any, including without limitation the Business Combination Step Down Share Purchase Right Agreement (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Escrow Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Escrow Agreement, those of the Underlying Agreement, any schedule or exhibit attached to the Escrow Agreement, or any other agreement between among the Parties, the terms and conditions of this Escrow Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer the Designated Monitor without inquiry and without requiring substantiating evidence of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agentany kind. 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 have no duty to solicit any payments which may be due it or the Escrowed Assets nor shall the Escrow FundsAgent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s fraud, gross negligence or willful misconduct was the primary cause of any loss to the Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through attorneys, and shall be liable only for its fraud, gross negligence or willful misconduct (as finally adjudicated in a court of competent jurisdiction) in the selection of any such attorney. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party party hereto which, in its opinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Designated Monitor which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree Designated Monitor agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are specifically and expressly set forth herein, which shall be deemed purely ministerial in nature, herein and no duties, including but not limited to any fiduciary duty, duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation limitation, the Business Combination Purchase Agreement (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any Person has complied with any such agreementsagreement, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreementsagreement, even though reference thereto may be made in this Escrow Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Escrow Agreement, those of the Underlying Agreement, any schedule or exhibit attached to the Escrow Agreement, or any other agreement between among the Parties, the terms and conditions of this Escrow Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction, request or Objection Notice other instrument furnished to it hereunder hereunder, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which the Escrow Agent reasonably believed by it believes to be genuine and to have been signed and or presented by an authorized signer of the proper Party party or Parties. Concurrent with the execution parties, without inquiry and without requiring substantiating evidence of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agentany kind. 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. Concurrent with the execution of this Escrow Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms in the form of Annex I to this Escrow Agreement. The Escrow Agent shall not be liable to any Party, any beneficiary or other Person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the Tax Escrow, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 10 below and the Escrow Agent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 11. 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. Escrow Agent shall not be responsible or liable in any manner for the performance by any party of their respective obligations under the Underlying Agreement nor shall Escrow Agent be responsible or liable in any manner for the failure of any party to honor any of the provisions of this Escrow Agreement. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Tax Escrow, including, without limitation, the Escrow FundsAmount 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. In The Escrow Agent shall not be liable for any action taken, suffered or omitted by it except to the event extent that a final, non appealable order or judgment (a “Final Order”) of a court of competent jurisdiction referred to in Section 12 of this Escrow Agreement (a “Competent Court”) determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either of the Parties. The Escrow Agent’s sole responsibility shall be for the safekeeping and disbursement of the Tax Escrow in accordance with the terms of this Escrow Agreement. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates, agents or attorneys and may consult with counsel, accountants and other skilled Persons to be selected and retained by it, including without limitation in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving any party hereto. The Escrow Agent shall incur no liability and shall be uncertain as fully indemnified from any liability whatsoever for anything done, suffered or omitted by it in accordance with, or in reasonable reliance upon, the advice or opinion of any such counsel, accountants or other skilled Persons. Purchaser shall promptly pay, upon demand, the reasonable fees and expenses of any such counsel. Escrow Agent shall not be obligated to its duties take any legal action or rights commence any proceeding in connection with the Tax Escrow, any account in which the Tax Escrow is deposited, this Escrow Agreement or the Underlying Agreement, or to appear in, prosecute or defend any such legal action or proceeding. If, at any time, (i) there shall exist any dispute involving any of the Parties with respect to the holding or disposition of any portion of the Tax Escrow or any other obligations of Escrow Agent hereunder or shall receive instructions, claims or demands from any Party hereto whichwhich the Escrow Agent determines, in its opinionsole discretion, conflict with any provision of this Escrow Agreement, (ii) Escrow Agent is unable to determine, to Escrow Agent’s sole satisfaction, the proper disposition of any portion of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, Tax Escrow or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment Agent’s proper actions with respect to certain circumstancesits obligations hereunder, and thereafter or (iii) the Parties have not within 30 days of the furnishing by Escrow Agent of a notice of resignation pursuant to Section 5 hereof, appointed a successor Escrow Agent to act hereunder, then Escrow Agent may, in its sole discretion, take either or both of the following actions: (1) suspend the performance of any of its obligations (including without limitation any disbursement obligation) under this Escrow Agreement until such dispute or uncertainty shall be fully relieved from resolved to the sole satisfaction of Escrow Agent or until a successor Escrow Agent shall have been appointed (as the case may be); or (2) petition (by means of an interpleader action or any and all liability or obligation other appropriate method) any Competent Court, for instructions with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action takenuncertainty, suffered or omitted to be taken by it in good faith except and to the extent that Escrow Agent’s fraudrequired or permitted by law, gross negligencepay into such court, or willful misconduct was for holding and disposition in accordance with the cause instructions of any direct loss to either Party. To the extent practicablesuch Competent Court, the Parties agree entire Tax Escrow. Escrow Agent shall have no liability to pursue any redress Party or recourse in connection with any dispute (other than individual or entity with respect to any suspension of performance or disbursement into a dispute involving Competent Court, specifically including any liability or claimed liability that may arise, or be alleged to have arisen, out of or as a result of any delay in the disbursement of funds held in the Tax Escrow or any delay in or with respect to any other action required or requested of Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action. Escrow Agent may rely on the validity, accuracy and content of the statements contained any written notice, document, instruction, or request furnished to it hereunder by Purchaser and Roseland without further investigation, inquiry or examination.
Appears in 1 contract
Sources: Membership Interest and Asset Purchase Agreement (Mack Cali Realty L P)
Escrow Agent. (a) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Agreement, and the Escrow Agent shall not be subject to, nor obligated to recognize, any provision of any other agreement between, or direction or instruction of, any or all of the parties to this Agreement (other than the definitions of capitalized terms that are defined in the Combination Agreement and not otherwise defined herein).
(b) If any portion of the Deposit Shares are at any time attached, garnished or levied upon under any court order or in case the disposition of the Deposit Shares shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such Deposit Shares or any part thereof, then and in all of such events, the Escrow Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree which it is advised by legal counsel is binding upon it. If the Escrow Agent complies with any such order, writ, judgment or decree, it shall not be liable to any of the parties to this Agreement or to any other person by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
(c) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall not be deemed purely ministerial liable for any act taken or omitted under this Agreement if taken or omitted by it in nature, good faith and no duties, including but not limited to any fiduciary duty, shall be impliedin the exercise of reasonable care under the circumstances. The Escrow Agent shall neither also be responsible forfully protected in relying upon any written notice, nor chargeable withdemand, knowledge ofcertificate or document that it in good faith believes to be genuine (including facsimiles thereof).
(d) The Escrow Agent, nor have and any requirements successor Escrow Agent, may resign at any time as Escrow Agent hereunder by giving at least ten (10) days’ written notice to comply withConcho Resources and the Concho Holdings Stockholders. Upon such resignation and the appointment of a successor Escrow Agent, the terms resigning Escrow Agent shall be absolved from any and conditions of any other agreement, instrument or document between the Parties, all liability in connection herewithwith the exercise of its powers and duties as Escrow Agent hereunder except for liability arising in connection with its gross negligence or willful misconduct. Upon their receipt of notice of resignation from the Escrow Agent, if anyConcho Resources and the Concho Holdings Stockholders shall use reasonable efforts jointly to designate a successor Escrow Agent. In the event Concho Resources and the Concho Holdings Stockholders do not agree upon a successor Escrow Agent within ten (10) days after the receipt of such notice, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if so resigning may petition any Person has complied with court of competent jurisdiction for the appointment of a successor Escrow Agent or other appropriate relief and any such agreementsresulting appointment shall be binding upon all parties hereto. By mutual agreement, nor the Concho Holdings Stockholders shall have the right at any additional obligations time, upon not less than five (5) days’ written notice given to the Escrow Agent, to terminate their appointment of the Escrow Agent be inferred from the terms of such agreementsAgent, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Partiesor successor Escrow Agent, the terms and conditions of this Agreement will control the actions of the as Escrow Agent. The Escrow Agent may rely upon or successor Escrow Agent shall continue to act as Escrow Agent until a successor is appointed and qualified to act as Escrow Agent. A termination under this paragraph shall not be liable for acting in no way discharge clause (f) of this Section 6 and Section 7 hereof affecting indemnity and reimbursement of expenses and fees.
(e) In the event of any conflicting or refraining from acting upon any Joint Release Instruction, Final Determination, inconsistent claims or Objection Notice furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent demands being made in connection with the execution subject matter of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In in the event that the Escrow Agent shall be uncertain is in doubt as to what action it should take hereunder, the Escrow Agent may, at its duties or rights hereunder or shall receive instructionsoption, refuse to comply with any claims or demands from on it, or refuse to take any Party hereto whichother action hereunder so long as such disagreement continues or such doubt exists, and in any such event, the Escrow Agent shall not be or become liable in any way or to any person for its opinionfailure or refusal to act, conflict with any of and the provisions of this Agreement, it Escrow Agent shall be entitled to continue to refrain from taking any action acting until (i) the rights of all parties have been fully and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into finally adjudicated by a court of competent jurisdiction jurisdiction, or may seek a declaratory judgment with respect to certain circumstances(ii) all differences shall have been settled and all doubt resolved by agreement among all of the interested persons, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The the Escrow Agent may consult with legal counsel of its selection shall have been notified thereof in writing signed by all such persons. In addition to the foregoing rights, in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised any doubt as to the course of action it should take under this Agreement, the Escrow Agent is hereby authorized to petition any state district court of competent jurisdiction in Dallas, Texas or the United States District Court of the likelihood Northern District of Texas for instructions or to interplead the funds or assets so held (including the Deposit Shares and any investments) into such losses court. The parties agree to the jurisdiction of either of said courts over their persons as well as the Deposit Shares, waive personal service of process, and agree that service of process by certified or damages and regardless registered mail, return receipt requested, to the address set forth for notice in Section 9(a) of the form of actionthis Agreement shall constitute adequate service.
(f) CONCHO RESOURCES AND THE CONCHO HOLDINGS STOCKHOLDERS HEREBY AGREE, SEVERALLY AND JOINTLY, TO INDEMNIFY ESCROW AGENT FOR, AND TO HOLD ESCROW AGENT HARMLESS AGAINST, ANY LOSS, LIABILITY OR EXPENSE INCURRED WITHOUT GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH ON THE PART OF ESCROW AGENT, ARISING OUT OF OR IN CONNECTION WITH ESCROW AGENT’S ENTERING INTO THIS AGREEMENT AND CARRYING OUT ESCROW AGENT’S DUTIES HEREUNDER, INCLUDING COSTS AND EXPENSES OF SUCCESSFULLY DEFENDING ESCROW AGENT AGAINST ANY CLAIM OF LIABILITY WITH RESPECT THERETO. 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.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the PartiesCompany and the Investors, in connection herewith, if any, including without limitation the Business Combination Distribution Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of the Distribution Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between among the PartiesCompany and the Investors, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer the Company or the Distributor without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to the Company, the Distributor any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Account, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 11 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 11. 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 have no duty to solicit any payments which may be due it or the Escrow FundsAccount, including, without limitation, the Escrow Deposit 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct resulted in any loss to the Company or the Distributor. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party the Company or the Distributor hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Company or Objection Notice. The the Distributor which eliminates such ambiguity or uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in Company and the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties Distributor each agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. The (a) Natural Health and Woodburn and LaCore acknowledge and agree that the Escrow Agent undertakes to perform (i) ▇▇▇▇▇ ▇▇ obli▇▇▇▇▇ only for the performance of such duties as are expressly specifically set forth herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and ; (ii) shall not be liable for 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 Joint Release Instructionwritten notice, Final Determinationinstruction (including, without limitation, wire transfer instructions, whether incorporated herein or Objection Notice provided in a separate written instruction), instrument, statement, request or document furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer 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 proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to Escrow Agent.
(b) Neither the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. The Escrow Agent nor any of its partners or employees shall be under no duty liable to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable anyone for any action taken, suffered taken or omitted to be taken by it or any of partners or employees hereunder except in good faith except to the extent that Escrow Agent’s fraud, case of gross negligence, bad faith or willful misconduct was the cause of any direct loss to either Partymisconduct. To the extent practicable, the Parties Natural Health and Woodburn and LaCore hereby covenant and agree to pursue jointly but not sev▇▇▇▇▇▇ ▇ndemn▇▇▇ ▇▇e Escrow Agent and hold it harmless without limitation from and against any redress loss, liability or recourse in connection with expenses and other costs, including but not limited to reasonable attorney's fees and other costs of defending or preparing to defend against any dispute (other than with respect to a dispute involving claim of liability, unless such loss, liability or expense shall be caused by the Escrow Agent) without making the Escrow Agent a party to the same's gross negligence, bad faith or willful misconduct. Anything in this Agreement to the contrary notwithstanding, in In no event shall the Escrow Agent be liable, liable for any special, indirect, punitive, incidental, special or consequential losses or damages damages. In the event of any kind whatsoever payment by Natural Health or Woodburn and LaCore pursuant to the indemnification obligation set f▇▇▇▇ ▇▇ this ▇▇▇▇▇▇aph (including but not limited to lost profitsb), even 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▇▇▇▇ ▇▇▇ 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 effective until a successor escrow agent has been duly appointed and authorized. Prior to the effective date of the resignation as specified in such notice, Natural Health and Woodburn and LaCore will issue to the Escrow Agent has been advised a written instruc▇▇▇▇ ▇▇▇horiz▇▇▇ ▇▇delivery of the likelihood Escrow Funds to a successor escrow agent that they select. If no successor escrow agent is named by Natural Health or Woodburn and LaCore, the Escrow Agent may apply to a court of such losses compet▇▇▇ ▇▇▇▇sdict▇▇▇ ▇▇ the State of Delaware (in accordance in the paragraph 14) for the appointment of a successor escrow agent. The provisions of paragraph (d) of this Section 5 shall survive the resignation or damages and regardless removal of the form Escrow Agent or the termination of actionthis Escrow Agreement.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Purchase Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding As between the Parties, in the event of any conflict between the terms and provisions of this Agreement and those of the Purchase Agreement, the terms and conditions of the Purchase Agreement shall control. As among the Parties and the Escrow Agent, in the event of any conflict between the terms and provisions of this Agreement, those of the Purchase Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between among the PartiesParties and the Escrow Agent, the terms and conditions of this Agreement will shall control the actions for purposes of the Escrow Agentthis Agreement. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or PartiesParties without inquiry and without requiring substantiating evidence of any kind. Concurrent with The Escrow Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementthe Fund, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 11 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 11. 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 have no duty to solicit any payments which may be due it or the Fund, including, without limitation, the Escrow FundsDeposit 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the cause of any loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving between the Escrow Agent) Parties without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent undertakes to perform only such those duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, herein and no duties, including but not limited to any fiduciary duty, duties shall be implied. .
(b) The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements no liability under and no duty to comply with, inquire as to the terms and conditions provisions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations agreement of the Escrow Agent be inferred from Affiliate and/or the terms of such agreements, even though reference thereto may be made in Secured Party other than this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. .
(c) The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determination, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. parties.
(d) 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. .
(e) The Escrow Agent shall have no duty not be liable for any action taken or omitted by it in good faith except to solicit any payments which may be due it or the extent that a court of competent jurisdiction determines that the Escrow Funds. Agent’s gross negligence or willful misconduct was the primary cause of any loss to the Affiliate.
(f) The Escrow Agent may consult with legal counsel of its choosing as to any matter relating to this Agreement and the Escrow Agent shall not incur any liability in acting in good faith in accordance with advice from such counsel.
(g) Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits and/or savings), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(h) The Escrow Agent may resign at any time by giving the Affiliate and the Secured Party thirty (30) calendar days’ prior written notice thereof.
(i) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, are in conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to action, other than keep safely all property held in escrow the Escrow Shares, until it shall be jointly directed otherwise in by the parties hereto or by a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into determination by a court of competent jurisdiction which order or may seek a declaratory judgment with respect decree is not subject to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. appeal.
(j) The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will shall not be liable for any action taken, suffered or omitted obligated to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages institute legal proceedings of any kind whatsoever (including but and shall not limited be required to lost profits), even if defend any legal proceeding instituted against it or in respect to the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of actionProperty.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Dealer Manager Agreement (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Escrow Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Escrow Agreement and those of the Underlying Agreement or any other agreement between among the Parties, the terms and conditions of this Escrow Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or Parties. Concurrent with the execution Parties without inquiry and without requiring substantiating evidence of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agentany kind. 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 have no duty to solicit any payments which may be due it or the Fund, including, without limitation, the Escrow FundsDeposit 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through attorneys and shall be liable only for its gross negligence or willful misconduct (as finally adjudicated in a court of competent jurisdiction) in the selection of any such attorney. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party party hereto which, in its opinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action. Any liability of the Escrow Agent under this Escrow Agreement will be limited to the amount of fees paid to the Escrow Agent.
Appears in 1 contract
Sources: Escrow Agreement (Commonwealth Income & Growth Fund VII, LP)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, Buyer and Seller in connection herewith, if any, including without limitation the Business Combination AgreementMIPA, nor shall the Escrow Agent be required to determine if any Person person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice Instruction furnished to it hereunder and reasonably believed by it in good faith to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by in the Escrow Agentform of Exhibit A-1 and Exhibit A-2 hereto. 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may may, after thirty (30) days’ written notice to Buyer and Seller of its intention to do so, interplead all of the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable shall have no liability or obligation with respect to any error of judgment or for any action taken, suffered act done or step taken or omitted to be taken by it in good faith faith, or for anything which it may do or refrain from doing in connection herewith, except to for the extent that Escrow Agent’s fraud, willful misconduct or gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties Buyer and Seller agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (a) damages, losses or expenses arising out of the services provided hereunder in good faith, other than damages, losses or expenses which result from the Escrow Agent’s fraud, gross negligence or willful misconduct, or (b) special, indirect, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (USD Partners LP)
Escrow Agent. The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no other duties, including but not limited to any fiduciary duty, shall be implied. The Notwithstanding anything to the contrary, Escrow Agent shall neither be responsible for, nor chargeable with, has no knowledge of, nor have any requirements obligation to comply with, the terms and conditions of any other agreement, instrument or document between Escrow Agent shall not be responsible for determining the Parties, in connection herewith, if any, including without limitation the Business Combination Agreementmeaning of any capitalized term not entirely defined herein, nor shall the Escrow Agent be required to determine if any Person Party has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreementother agreement. Notwithstanding the terms of any other agreement between the Partiesagreement, the terms and conditions of this Agreement will shall control the actions of the Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting any written notice, document, instruction or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably request delivered by the Parties believed by it to be genuine and to have been signed and presented by an authorized signer Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. The 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. The Any notice, document, instruction or request delivered by a Party but not required under this Agreement may be disregarded by Escrow Agent. ESCROW AGENT SHALL NOT BE LIABLE FOR ANY ACTION TAKEN, SUFFERED OR OMITTED TO BE TAKEN BY IT IN GOOD FAITH EXCEPT TO THE EXTENT THAT ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT WAS THE CAUSE OF ANY DIRECT LOSS TO EITHER PARTY. Escrow Agent may 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, or believes there is some ambiguity, as to its duties or rights hereunder or receives instructions, claims or demands from any 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that Fund, including, without limitation, the Escrow Agent Deposit nor shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from have any and all liability duty or obligation with respect to such interpleaded assets confirm or any action verify the accuracy or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event correctness of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties amounts deposited with it hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted Parties grant to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party lien and security interest in the Fund in order to secure any indemnification obligations of the same. Anything in this Agreement Parties or obligation for fees or expenses owed to the contrary notwithstanding, in no event shall the Escrow Agent be liablehereunder. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, for any specialIN NO EVENT SHALL ESCROW AGENT BE LIABLE FOR SPECIAL, indirectINCIDENTAL, punitivePUNITIVE, incidental, or consequential losses or damages of any kind whatsoever INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER (including but not limited to lost profitsINCLUDING BUT NOT LIMITED TO LOST PROFITS), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of actionEVEN 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
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no other duties, including but not limited to any fiduciary dutyduties, shall be impliedimplied except as required under applicable law. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Purchase Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and and, except for the Escrow Agent’s fraud, willful misconduct or gross negligence, shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Instruction or Final Determination, or Objection Notice Determination furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by in the Escrow Agentform of Exhibit A-1 and Exhibit A-2 attached hereto. 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its reasonable opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Instruction or Final Determination, or Objection Notice. The Escrow Agent may interplead all of the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be 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 fraud, gross negligence, negligence or willful misconduct was the cause of any direct loss to either Party. To the extent practicablepracticable and reasonable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirect, punitive, incidental, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, shall be implied. (a) The Escrow Agent shall neither not be liable in any way to any party hereto for its refusal to comply with adverse claims or demands being made upon it and shall not be responsible for, nor chargeable with, knowledge of, nor have for any requirements act or failure to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreementact on its part, nor shall it have any liability under this Escrow Agreement, except in the case of bad faith, willful default or gross negligence. The Escrow Agent's duties and responsibilities, in its capacity as such, shall be limited to those expressly set forth in this Escrow Agreement, and the Escrow Agent shall not be required to determine if subject to, or recognize, any Person has complied with other agreement between any such agreements, nor shall any additional obligations or all of the Escrow Agent be inferred from the terms of such agreements, parties hereto even though reference thereto may be made herein, except to the extent that definitions contained in the Merger Agreement or the Indemnification Agreement and the alternative dispute resolution procedures of the Indemnification Agreement are incorporated into this Escrow Agreement. This Escrow Agreement may not be amended at any time in such a way as to affect the rights, responsibilities, obligations, liabilities or fees of the Escrow Agent except with the Escrow Agent's prior written consent, as evidenced by an instrument in writing signed by all the parties hereto.
(b) The Escrow Agent (so long as it is ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ P.C.) or any member of its firm, shall be permitted to act as counsel for BL in any dispute or question as to any matter arising out of the Merger Agreement, the Distribution or the Transactions.
(c) The Escrow Agent may resign at any time upon ninety (90) days written notice to Buyer and BL and in such event, shall deliver the Escrow Funds and any interest thereon pursuant to the joint written instructions of BL and Buyer. The parties agree to make any necessary amendments to this Agreement to permit the successor escrow agent to assume the obligations of Escrow Agent under this Agreement. Notwithstanding Should the terms successor escrow agent not assume this Agreement, the Escrow Agent may deposit the Escrow Fund and any such interest with the clerk of an appropriate court in New York, New York.
(d) Each of BL and Buyer agree, jointly and separately, to indemnify and hold harmless the Escrow Agent from and against any other agreement between demands, claims, causes of action, liabilities, costs and expenses (including outside counsel fees and disbursements), arising out of this Escrow Agreement except for claims which are asserted against the Parties, Escrow Agent based upon the Escrow Agent's failure to comply with the terms and conditions of this Escrow Agreement will control or the actions bad faith, gross negligence or willful misconduct of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction; provided however, Final Determination, or Objection Notice furnished to it hereunder and reasonably believed that (A) promptly after the receipt by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by of notice of any demand or claim or the commencement of any such action, suit or proceeding, the Escrow Agent. Agent shall notify all parties hereto in writing of the existence of such demand, claim, action, suit or proceeding; (B) the indemnitor(s) shall be entitled, at its own expense, to participate in and assume the defense of any such action, suit or proceeding.
(e) The Escrow Agent shall be under entitled to be compensated by BL for its reasonable time expended and disbursements incurred in connection with carrying out its duties hereunder.
(f) The Escrow Agent shall be entitled to rely or act upon any notice, instrument or document believed by it to genuine and to be executed and delivered by the proper person and shall have no duty obligation to inquire into verify any statements contained in any notice, instrument or investigate document or the validity, accuracy or content due authorization of the execution of any such document, notice, instruction instrument or requestdocument. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be other than to keep safely all cash and other payments and all other property held by it in escrow Escrow and to make the investments as herein provided until it shall be directed otherwise in a Joint Release Instruction, Final Determinationwriting by the Buyer and BL, or Objection Noticeas otherwise provided herein or by a final order. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from shall not have any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection interest in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action takenFund, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything possession thereof in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of actionits capacity as escrow agent hereunder.
Appears in 1 contract
Sources: Escrow Agreement (Besicorp LTD)
Escrow Agent. The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, has no knowledge of, nor have any requirements requirement to comply with, the terms and conditions of any other agreement, instrument or document agreement between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person Party has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreementother agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will shall control the actions of the Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting any written notice, document, instruction or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably request delivered by the Parties believed by it to be genuine and to have been signed and presented by an authorized signer Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. The 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. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, 's gross negligence, negligence or willful misconduct was the cause of any direct loss to either Party. To Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the extent practicableevent Escrow Agent receives instructions, claims or demands from any Party hereto which 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 a joint written direction executed by Authorized Representatives of the Parties which eliminates such conflict or by a final court order or (b) file an action in interpleader. Escrow Agent shall have no duty to solicit any payments which may be due it or the Fund, including, without limitation, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making Deposit nor shall the Escrow Agent a party have any duty or obligation to confirm or verify the sameaccuracy 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, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 1 contract
Sources: Subscription Escrow Agreement (Omnitek Engineering Corp)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreementsother agreement, instrument or document, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreementsany other agreement, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of any other agreement, any schedule or exhibit attached to this Agreement, or any other agreement between among the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or PartiesParties without inquiry and without requiring substantiating evidence of any kind. Concurrent with The Escrow Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementthe Equity Contribution, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 11 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required thereunder. 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 have no duty to solicit any payments which may be due it or to it, including, without limitation, the Equity Contribution, nor shall the Escrow FundsAgent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a court of competent jurisdiction (as set forth in Section 13 hereof) determines, by final adjudication, that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to any Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentas set forth in Section 13 hereof). The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent shall neither not be responsible forliable for any action taken or omitted by it in good faith and its liability hereunder shall be limited to liability for gross negligence or willful misconduct on its part. The Issuer and the Purchaser agree to save harmless, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms indemnify and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall defend the Escrow Agent be required for, from and against any loss, damage, liability, judgment, cost and expense whatsoever, by reason of, or on account of, any misrepresentation made to determine if any Person has complied with any such agreements, nor shall any additional obligations of the it or its status or activities as Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of under this Agreement will control except for any loss, damage, liability, judgment, cost or expense resulting from gross negligence or willful misconduct on the actions part of the Escrow Agent. The Escrow Agent may shall not be responsible for any failure or inability of any of the parties to perform or comply with 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 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 liable required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume in good faith that any person purporting to 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 to such party in 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. Each party further acknowledges that the Escrow Agent has acted, and acts, as legal counsel in certain matter to the Company and ▇.▇. ▇▇▇▇▇▇ & Co., Inc. ("▇▇▇▇▇▇") Each party hereto waives all claims in the nature of conflict of interest against the Escrow Agent and further agrees that in the event of any dispute which arises hereunder, or otherwise between a party and the Company, the Escrow Agent shall be free to represent the Company. 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 Issuer of any discrepancy between the amounts set forth on any statement delivered by the Purchaser and/or the Issuer and the sum or sums delivered to it therewith;
(c) be under no duty to accept funds, checks, drafts or instruments for acting the payment of money from anyone other than the Issuer or refraining from the Purchaser, or to give any receipt therefor except to the Issuer or the Purchaser, with a copy in each case to the Issuer;
(d) be protected in acting upon any Joint Release Instructionnotice, Final Determinationrequest, certificate, approval, consent or Objection Notice furnished to it hereunder and other paper reasonably believed by it to be genuine and to have been be signed and presented by an authorized signer of the proper Party party or Parties. Concurrent 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 execution advice of such counsel; provided, however, that nothing in this subsection (e), nor any action taken by the Escrow Agent, or suffered or omitted by it in accordance with 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;
(f) not be bound by any modification, amendment, termination, cancellation, or recission of this Agreement, unless the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. The Escrow Agent same shall be under no duty in writing and signed by it;
(g) be entitled to inquire into or investigate the validity, accuracy or content of refrain from taking any such document, notice, instruction or request. The Escrow Agent shall have no duty action other than to solicit any payments which may be due keep all property held in escrow if it or the Escrow Funds. In the event that the Escrow Agent (i) shall be uncertain as to concerning its duties or rights hereunder hereunder, or (ii) shall receive instructions, have received claims or demands from any Party hereto party, or (iii) shall have received instructions from the Purchaser and/or the Issuer which, in its the Escrow Agent's opinion, are in conflict with any of the provisions of this Agreement, until it shall have received a final judgment by a court of competent jurisdiction;
(h) have no liability for following the instructions herein or expressly provided for herein, or the written instructions given by the Purchaser and/or the Issuer; 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) business days prior to the date specified for such resignation to take effect, and upon the effective date of such resignation all cash and other payments and all other property then held by the Escrow Agent hereunder shall be entitled delivered by it to refrain from taking any action 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 its terminate. If no 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 obligation 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 escrow until it shall be directed otherwise in accordance with the directions of a Joint Release Instruction, Final Determination, final order or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of actionjurisdiction.
Appears in 1 contract
Sources: Securities Purchase Agreement (CSL Lighting Manufacturing Inc)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Share Purchase Agreement, dated as of the date hereof, by and among the Company, the shareholders of the Company, Sellers’ Representative and Purchaser, (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of the Underlying Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between among the Parties, the terms and conditions of this Agreement will shall control the actions of only in connection with any matter related to the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or PartiesParties without inquiry and without requiring substantiating evidence of any kind. Concurrent with The Escrow Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementthe Escrow Asset, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 10 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due it or the Escrow FundsAsset 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reasonable reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if unless such loss or damage is incurred due to the gross negligence or willful misconduct of the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of actionAgent.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no other duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, has no knowledge of, nor have any requirements obligation to comply with, the terms and conditions of any other agreement, instrument or document of the Underlying Agreements between the PartiesCompany, in connection herewith, if any, including without limitation the Business Combination AgreementLenders and/or the Administrative Agent, nor shall the Escrow Agent be required to determine if any Person Party has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreementother agreement. Notwithstanding the terms of any other agreement between the PartiesCompany, the Lenders and/or the Administrative Agent, the terms and conditions of this Agreement will shall control the actions of the Escrow Agent. The Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by each of the Company and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably the Administrative Agent believed by it to be genuine and to have been signed and presented by an authorized signer Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. 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. Any notice, document, instruction or request delivered by the Parties but not required under this Agreement may be disregarded by the Escrow Agent and returned to the sending Party. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be 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 fraud, gross negligence, bad faith or willful misconduct was the cause of any direct loss to either Partythe Company or the Administrative Agent. To The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the extent practicableevent the Escrow Agent shall be uncertain, the Parties agree or believes there is some ambiguity, as to pursue its duties or rights hereunder, or receives instructions, claims or demands from any redress or recourse Party hereto that in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making ’s judgment conflict with the provisions of this Agreement, or if the Escrow Agent receives conflicting instructions from the Company and the Administrative Agent, the Escrow Agent shall be entitled either to: (a) refrain from taking any action until it shall be given (i) a party joint written direction executed by Authorized Representatives of the Company and the Administrative Agent (or only the Administrative Agent after its delivery of a Notice of Exclusive Control or an Administrative Agent Objection Certificate), that eliminates such conflict or (ii) 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 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 it or the sameEscrow Account, including, without limitation, the Escrow Deposit Amounts, 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 the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action. The Escrow Agent shall have no responsibility or liability to Company for complying with written instructions or other written directives concerning the Escrow Account originated by the Administrative Agent as described in Section 5 and delivered to Escrow Agent in accordance with this Agreement.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, Agreement (nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Escrow Agreement). Notwithstanding In the event of any conflict between the terms and provisions of this Escrow Agreement, those of the Agreement, any schedule or exhibit attached to the Escrow Agreement, or any other agreement between among the Parties, the terms and conditions of this Escrow Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or Parties. Concurrent with the execution Parties without inquiry and without requiring substantiating evidence of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agentany kind. 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 have no duty to solicit any payments which may be due it or the Account(s) nor shall the Escrow FundsAgent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through attorneys, and shall be liable only for its gross negligence or willful misconduct (as finally adjudicated in a court of competent jurisdiction) in the selection of any such attorney. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party party hereto which, in its opinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Merger Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreementsthe Merger Agreement, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreementsthe Merger Agreement, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of the Merger Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between among the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or PartiesParties without inquiry and without requiring substantiating evidence of any kind. Concurrent with The Escrow Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementthe Escrow Fund, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 10 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required thereunder. 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets confirm or any action verify the accuracy or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event correctness of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties amounts deposited with it hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Escrow Agent. ARTICLE 14.1. The Deposit shall be held in escrow until Closing by Seller’s attorneys, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP (“Escrow Agent”). The Deposit shall be placed in an interest bearing account and the Deposit and interest (the “Interest”) accrued on the Deposit shall be paid over as follows:
(i) in the event title closes hereunder the Deposit and Interest shall be paid to the Seller at Closing;
(ii) in the event title does not close by reason of a default by Seller, the Deposit and Interest shall be paid to Purchaser together with the monies to be remitted to Purchaser pursuant to Section 11.1 of this Agreement; and
(iii) in the event title does not close by reason of a default by Purchaser, the Deposit and Interest shall be paid to Seller and this Agreement shall be null and void and there shall be no further liability on behalf of either party.
ARTICLE 14.2. Escrow Agent undertakes to perform only such duties is acting hereunder as are expressly set forth hereinstakeholder only, which shall be deemed purely ministerial in nature, without compensation and no duties, including but not limited to any fiduciary duty, shall be impliedfor the convenience and at the request of the parties. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting any action taken or refraining from acting upon any Joint Release Instructionomitted in good faith, Final Determination, or Objection Notice furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as liable for its gross negligence or willful misconduct in any event. Escrow Agent shall not be liable for and the parties jointly and severally agree to its duties indemnify Escrow Agent against and hold Escrow Agent harmless from the payment of any interest or rights hereunder court costs or legal fees in any legal action that may be brought to recover the monies held in escrow or any part thereof unless the Escrow Agent shall receive instructionsfail or refuse to pay over any such monies pursuant to a final judgment, claims order or demands from decree. At any Party hereto whichtime, Escrow Agent shall be entitled, in its opinionsole discretion, conflict with to apply to any court of competent jurisdiction to determine the rights of the provisions parties hereof, and in the event of such application of the Deposit, and Interest with such court, Escrow Agent shall be relieved and discharged from any liability or responsibility to the parties hereto.
ARTICLE 14.3. Notwithstanding any other provision of this Agreement, it no notice, demand, request or other communication to the Escrow Agent in connection herewith shall be entitled binding on the Escrow Agent unless it is in writing, refers specifically to refrain from taking any action this Agreement, is addressed to the Escrow Agent and its sole obligation is actually received by the Escrow Agent. Notwithstanding anything herein to the contrary, Escrow Agent shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The hold the Deposit as agent for the Seller provided however that Escrow Agent may interplead all the assets held hereunder into a court represent Seller in any matter arising out of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to and the contrary notwithstanding, in no event shall the Escrow Agent be liable, for transaction and Purchaser waives any special, indirect, punitive, incidental, or consequential losses or damages claim of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised conflict of the likelihood of interest arising from such losses or damages and regardless of the form of actionrepresentation.
Appears in 1 contract
Sources: Purchase Agreement (Tii Network Technologies, Inc.)
Escrow Agent. The Escrow Agent's responsibility and liability under this Agreement shall be limited as follows:
(i) Escrow Agent undertakes does not represent, warrant or guaranty to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited the holders of the Notes from time to any fiduciary duty, shall be implied. The time the performance of the Company or the Trustee; (ii) Escrow Agent shall neither be have no responsibility to the Company or the holders of the Notes or the Trustee from time to time as a consequence of performance or nonperformance by Escrow Agent hereunder, except for any gross negligence or willful misconduct of Escrow Agent; (iii) the Company shall remain solely responsible forfor all aspects of the Company's business and conduct; and (iv) Escrow Agent is not obligated to supervise, nor chargeable with, knowledge of, nor have inspect or inform the Company or any requirements to comply with, the terms and conditions third party of any other agreement, instrument matter referred to above. No implied covenants or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreementobligations shall be inferred from this Agreement against 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, 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 Temporary Cash Investments held by it hereunder, including, without limitation, any liability for any delay not resulting from its gross negligence or willful misconduct in such investment, reinvestment or liquidation, or for any loss of principal or income incident to any such delay. Escrow Agent shall be entitled to conclusively 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 if the authenticity or the correctness of any Person has complied with any such agreements, nor shall any additional obligations fact stated therein or the propriety or validity of the service thereof. Escrow Agent be inferred from may act in reliance upon any instrument comporting with the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions provisions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably signature believed by it to be genuine and may assume that any person purporting to have been signed and presented by an authorized signer of the proper Party give notice or Parties. Concurrent receipt or advice or make any statement or execute any document in connection with the execution of this Agreement, the Parties shall deliver provisions hereof has been duly authorized to the Escrow Agent authorized signers’ forms as provided by the Escrow Agentdo so. 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all act pursuant to the assets held hereunder into a court written advice of competent jurisdiction or may seek a declaratory judgment counsel chosen by it with respect to certain circumstances, any matter relating to this Agreement and thereafter be fully relieved from any and all liability or obligation with respect (subject to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will Section 4(ii) hereof) shall not be liable for any action taken, suffered taken or omitted in accordance with such advice. Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder. Escrow Agent shall not be taken by responsible for or incur any liability in connection with the performance of any investment made at the discretion of the Company, for any other loss or gain in the Escrow Account, or for the sufficiency of funds in the Escrow Account to cover interest payments on the Notes. Escrow Agent shall not be liable for any action it takes or omits to take in good faith except which it believes to the extent be authorized or within its rights or powers; provided, however, that Escrow Agent’s fraud, gross 's conduct does not constitute wilful misconduct or negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Sources: Escrow and Disbursement Agreement (Splitrock Services Inc)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the PartiesCompany, the Sponsor, TipTop and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Merger Agreement or the Assurance Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding .
(b) In the event of any conflict between the terms and provisions of this Agreement with those of the Merger Agreement or the Assurance Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between the PartiesCompany, the Sponsor, TipTop or any other person or entity related to the Escrow Agent’s duties hereunder, the terms and conditions of this Agreement will control the actions of the Escrow Agent. shall control.
(c) The Escrow Agent may rely upon upon, and shall not be liable for acting or refraining from acting upon upon, any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer the Company, TipTop or the Sponsor without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary, or other person or entity, for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Shares, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 10 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 11. 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 have no duty to solicit any payments which may be due it or nor shall the Escrow FundsAgent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder.
(d) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s fraud, gross negligence or willful misconduct was the primary cause of any loss to either the Company, TipTop, the Sponsor or any beneficiary of the Escrow Shares. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents.
(e) The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s fraud, gross negligence or willful misconduct was the primary cause of any loss to either the Company, TipTop, the Sponsor or any beneficiary of the Escrow Shares. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instructionwriting which eliminates such ambiguity or uncertainty to the satisfaction of the Escrow Agent, Final Determination, until an Order or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into judgement of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Partiesdocument, in connection herewith, if any, including without limitation the Business Combination Securities Purchase Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of the Securities Purchase Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between the Partiesagreement, the terms and conditions of this Agreement will shall control the actions of only in connection with any matter related to the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer the proper person without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any party, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrowed Shares, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 10 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due to it or the Escrowed Shares nor shall the Escrow FundsAgent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's bad faith, fraud, gross negligence or willful misconduct was the cause of any loss to the Issuer or any Purchaser. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reasonable reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from the Issuer or any Party Buyer hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instructionwriting by the Issuer or the applicable Buyer, Final Determinationas the case may be, which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties Issuer agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) Purchasers without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Escrow Agent. The (a) Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, has no knowledge of, nor have any requirements requirement to comply with, the terms and conditions of any other agreement, instrument or document agreement between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person Party has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreementother agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will shall control the actions of the Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting any written notice, document, instruction or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably request delivered by the Parties believed by it to be genuine and to have been signed and presented by an authorized signer Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. The 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. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, negligence or willful misconduct was the cause of any direct loss to either Party. To Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the extent practicableevent Escrow Agent receives instructions, claims or demands from any Party hereto which conflict with the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent shall be entitled either to (i) refrain from taking any action until it shall be given a joint written direction executed by Authorized Representatives of the Parties which eliminates such conflict or by a final court order or (ii) file an action in interpleader. Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrowed Funds, 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.
(b) Representatives and Purchaser, jointly and severally, shall indemnify, defend, hold harmless, pay or reimburse the Escrow Agent and its directors, officers, agents and employees (the “indemnitees”), from any and all losses, liability, expense, claims, penalties, judgments, settlements, litigation, investigations, damages, cost or expenses, (including, without limitation, the Parties agree to pursue any redress fees and expenses of outside counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively “Losses”), arising out of or recourse in connection with the Escrow Agent’s (i) execution and performance of this Escrow Agreement, except in the case of any dispute indemnitee to the extent that such Losses, liability or expense is determined by a court of competent jurisdiction through a final order to have been caused by the gross negligence, willful misconduct, or bad faith of such indemnitee; or (ii) following of any instructions or other than directions from an Authorized Representative of the Parties, whether joint or singular, except to the extent that its following any such instruction or direction from the Parties received in accordance with this Agreement is expressly forbidden by the terms hereof. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines that the Escrow Agent’s gross negligence, willful misconduct, or bad faith was the primary cause of any loss to any Party to this Escrow Agreement. Purchaser, on the one hand, and Representatives, on the other hand, each shall be responsible for one-half of all fees charged by Escrow Agent for its services hereunder, as listed in Schedule 2. Representatives and Purchaser each shall be responsible for one-half of any amounts ultimately determined to be payable to the Escrow Agent with respect to a dispute involving the obligations of the parties to indemnify the Escrow Agent. The Parties hereby grant Escrow Agent a lien on, right of set-off against and security interest in the Escrowed Funds for the payment of any claim for indemnification, fees, expenses and amounts due to Escrow Agent or an indemnitee. In furtherance of the foregoing, Escrow Agent is expressly authorized and directed, but shall not be obligated, to charge against and withdraw from the Escrowed Funds for its own account or for the account of an indemnitee any amounts due to Escrow Agent or to an indemnitee under this Escrow Agreement.
(c) without making In taking or omitting to take any action hereunder, Escrow Agent may rely upon any notice or other document reasonably believed by it to be genuine, or upon evidence reasonably deemed by it to be sufficient.
(d) The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons.
(e) In the event that the Escrow Agent is uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its opinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held under the terms of this Escrow Agreement until it shall be directed otherwise in writing by all of the other parties hereto or by a party to the samefinal order or judgment of a court of competent jurisdiction. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirect, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action. The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of the Escrow Agent or the termination of this Escrow Agreement.
(f) The Escrow Agent may resign and be discharged from its duties or obligations hereunder by giving thirty (30) days advance notice in writing of such resignation to the Representatives and Purchaser specifying a date when such resignation shall take effect. If the Representatives and Purchaser have failed to appoint a successor escrow agent prior to the expiration of thirty (30) days following receipt of the notice of resignation, the Escrow Agent may (i) petition any court of competent jurisdiction for the appointment of a successor escrow agent or for other appropriate relief, or (ii) appoint a successor escrow agent of it own choice. Any appointment of a successor escrow agent shall be binding upon the Parties and no appointed successor escrow agent shall be deemed to be an agent of Escrow Agent, and any such resulting appointment shall be binding upon all of the parties hereto. Escrow Agent’s sole responsibility after such thirty (30) day notice period expires shall be to hold the Escrowed Funds (without any obligation to reinvest the same) and to deliver the same to a designated substitute escrow agent, if any, or in accordance with the directions of a final order or judgment of a court of competent jurisdiction, at which time of delivery Escrow Agent’s obligations hereunder shall cease and terminate, subject to the provisions of Section 7 hereunder. The Escrow Agent shall have the right to withhold an amount equal to any amount due and owing to the Escrow Agent, plus any costs and expenses the Escrow Agent shall reasonably believe may be incurred by the Escrow Agent in connection with the termination of the Escrow Agreement.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Interconnection System Impact Study Agreement or Interconnection Facilities Study Agreement (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of the Underlying Agreement, any schedule or exhibit attached to the Agreement, or any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. The and Escrow Agent shall be under have no duty of inquiry and no obligation to inquire into or investigate the validity, accuracy or content require substantiating evidence of any such document, notice, instruction or requestkind. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Fund, including, without limitation, the Escrow FundsDeposit, 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 1 contract
Sources: Escrow Agreement
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the PartiesCompany, Nekcom and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Agreement, Underlying Agreement or nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding .
(b) In the event of any conflict between the terms and provisions of this Agreement, those of the Underlying Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between the PartiesCompany and any other person or entity, the terms and conditions of this Agreement will control the actions of the Escrow Agent. shall control.
(c) The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer the Company without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Shares, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 9 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due 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.
(d) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either the Company or the beneficiary. The Escrow FundsAgent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents.
(e) The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either the Company or the beneficiary. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of the Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgement of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree Company agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth hereinin this Section 2.18, which shall be deemed purely ministerial in nature, and no duties, including but other duties shall be implied. The Escrow Agent shall not limited be subject to any fiduciary dutyor other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall be impliednot have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between the Partiesor among any Loan Party and any Lender, in connection herewith, if anyherewith or otherwise, including without limitation any other Loan Document and including the Business Combination Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made except to the extent such provisions are repeated in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow AgentSection 2.18. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party Designated Company or Partiesthe Borrower. Concurrent with On the execution of this AgreementEffective Date, the Parties Designated Company and/or the Borrower shall deliver to the Escrow Agent authorized signers’ forms as provided by in the Escrow Agent. form of Exhibit M. 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 have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrow FundsEscrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto Person which, in its opinion, conflict with any of the provisions of this AgreementSection 2.18, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property the Escrowed Amounts held in escrow until it shall be directed otherwise in given a Joint Release Instruction, Final Determination, or Objection Noticejoint direction from the Loan Parties and the Lenders. The Escrow Agent may interplead all of the assets held hereunder Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered shall have no liability or omitted to be taken by it in good faith except obligation with respect to the extent that Escrowed Amounts except for the Escrow Agent’s fraud, willful misconduct or gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Loan Parties and the Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any special(x) damages, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised expenses arising out of the likelihood of such services provided hereunder other than damages, losses or damages and regardless of expenses which result from the form of action.Escrow
Appears in 1 contract
Escrow Agent. 5.1. The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination agency agreement contemplated by that engagement letter dated as of June 24, 2009 by and among the Issuer, Canaccord and Bolder (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Escrow Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Escrow Agreement and those of the Underlying Agreement or any other agreement between among the Parties, the terms and conditions of this Escrow Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or Parties. Concurrent with the execution Parties without inquiry and without requiring substantiating evidence of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agentany kind. 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 have no duty to solicit any payments which may be due it or the Fund nor shall the Escrow FundsAgent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder.
5.2. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to any Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through attorneys and shall be liable only for its gross negligence or willful misconduct (as finally adjudicated in a court of competent jurisdiction) in the selection of any such attorney. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party party hereto which, in its opinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Issuer and Canaccord which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action. Any liability of the Escrow Agent under this Escrow Agreement will be limited to the amount of fees paid to the Escrow Agent.
5.3. All amounts held by the Escrow Agent in the Escrow Account are held by the Escrow Agent in an account with itself as banker rather than as trustee, and therefore will not be held in accordance with the client money rules of the FSA (the Financial Services Authority, and any successor or replacement organisation, following amalgamation, merger or otherwise, recognised under the Financial Services and Markets ▇▇▇ ▇▇▇▇ (including any statutory modification or re-enactment thereof or any regulations or orders made thereunder) by which the Escrow Agent is for the time being regulated or authorised).
5.4. Any reference in this Agreement to the “FSA Rules” means the rules of the FSA as set out in the FSA’s Handbook of Rules and Guidance as amended, varied or substituted from time to time. Where the Escrow Agent is for the time being subject to any FSA Rules in the provision of services pursuant to this Agreement (including without limitation, in relation to the appointment of agents) the rights and obligations of the Escrow Agent under the provisions of this Agreement shall be read and construed as subject to and permitted by such Rules, and the provisions of this Agreement shall be limited accordingly.
5.5. The person to whom the Escrow Agent owes the Fund pursuant to clause 2 is the customer of the Escrow Agent for the purposes of the FSA Rules (the “Customer”). For the purposes of the FSA Rules, the Escrow Agent shall treat the Customer as a professional client and, notwithstanding that the Customer may be acting as agent on behalf of another person, the Customer alone shall be treated as the Escrow Agent’s customer. The Customer is required to notify the Escrow Agent immediately if at any time it considers that it would no longer fall within the definition of professional client for the purposes of the FSA Rules.
5.6. Nothing in the Agreement is intended to exclude or restrict any duty or liability of the Escrow Agent to the other parties hereto which the Escrow Agent is not permitted to exclude or restrict by the Financial Services and Markets ▇▇▇ ▇▇▇▇ or the FSA Rules.
Appears in 1 contract
Sources: Escrow Agreement (Vuzix Corp)
Escrow Agent. (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and shall under no duties, including but not limited circumstance be deemed a fiduciary for any of the Parties to any fiduciary duty, shall be impliedthis Agreement. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the PartiesParties (other than a Joint Release Instruction or Final Determination), in connection herewith, if any, including without limitation the Business Combination Purchase Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreementsagreements (other than a Joint Release Instruction or Final Determination), nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement (which includes any cross-references to the Purchase Agreement) will control the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Instruction or Final Determination, or Objection Notice Determination furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by in the Escrow Agentform of Exhibit A‑1 and Exhibit A‑2 attached hereto. 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Instruction or Final Determination, or Objection Notice. The Escrow Agent may interplead all of the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be 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 fraud, gross negligence, or willful misconduct or gross negligence was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirect, punitive, incidental, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Purchase Agreement (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Escrow Agreement. Notwithstanding In the event of any conflict relating to the rights and duties of Escrow Agent between the terms and provisions of this Escrow Agreement, those of the Underlying Agreement, any schedule or exhibit attached to the Escrow Agreement, or any other agreement between among the Parties, the terms and conditions of this Escrow Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or Parties. Concurrent with the execution Parties without inquiry and without requiring substantiating evidence of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agentany kind. 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that Fund, including, without limitation, the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event Deposit,nor shall the Escrow Agent be liable, for have any special, indirect, punitive, incidental, duty or consequential losses obligation to confirm or damages verify the accuracy or correctness of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.amounts deposited with it
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Stock Purchase Agreement (each, an “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreementsUnderlying Agreement, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreementsany Underlying Agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of any Underlying Agreement, any schedule or exhibit attached to such Underlying Agreement, or any other agreement between among the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or PartiesParties without inquiry and without requiring substantiating evidence of any kind. Concurrent with The Escrow Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementthe Fund, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 11 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required thereunder. 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 have no duty to solicit any payments which may be due it or the Fund, including, without limitation, the Escrow FundsDeposit 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.a
Appears in 1 contract
Sources: Escrow Agreement
Escrow Agent. (a) The Escrow Agent undertakes shall be obligated only to perform only such the duties as are expressly specifically set forth hereinin this Agreement, which shall be deemed purely ministerial in nature, and shall under no duties, including but not limited circumstances be deemed to be a fiduciary to any fiduciary duty, shall be impliedparty or any other person. The parties agree that the Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have not assume any requirements to comply with, responsibility for the terms and conditions failure of any the parties (other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall than the Escrow Agent be required Agent) to determine if any Person has complied perform in accordance with any such agreementsthis Agreement. This Agreement sets forth all matters pertinent to the escrow contemplated hereunder, nor shall any and no additional obligations of the Escrow Agent shall be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of Agreement or any other agreement between agreement. In no event shall the PartiesEscrow Agent be liable, directly or indirectly, for any (i) damages or expenses arising out of the terms and conditions of this Agreement will control the actions of services provided hereunder, other than damages which result from the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting ’s gross negligence or refraining from acting upon any Joint Release Instruction, Final Determinationwillful misconduct, or Objection Notice furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party (ii) special or Parties. Concurrent with the execution of this Agreementconsequential damages, the Parties shall deliver to even if the Escrow Agent has been advised of the possibility of such damages.
(b) Except for advancing margin or other credit to the Company in violation of Section 6 above, the Escrow Agent shall have no responsibility or liability to the Trustee for making trades of Financial Assets held in the Escrow Account at the instruction of the Company, or its authorized signers’ forms as provided representative, or complying with entitlement orders in accordance with Section 5 above concerning the Escrow Account from the Company, or its authorized representative, which are received by the Trustee before Escrow AgentAgent receives a Notice of Exclusive Control. The Escrow Agent shall be under have no duty responsibility or liability to inquire into the Company for complying with a Notice of Exclusive Control or investigate complying with entitlement orders concerning the validity, accuracy or content of any such document, notice, instruction or requestEscrow Account originated by the Trustee. The Escrow Agent shall have no duty to solicit investigate or make any payments which determination as to whether the conditions for the issuance of a Notice of Exclusive Control contained in any agreement between the Company and the Trustee have occurred. Neither this Agreement nor the Security Agreement imposes or creates any obligation or duty of the Escrow Agent other than those expressly set forth herein.
(c) The Escrow Agent, in its capacity as such, shall have no duties or responsibilities, including, without limitation, a duty to review or interpret the Indenture, except those expressly set forth herein. Except for this Agreement, the Escrow Agent, in its capacity as such, is not a party to, or bound by, any agreement that may be due it required under, evidenced by, or arise out of the Escrow Funds. In the event that Indenture.
(d) If the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands instructions from any Party hereto of the undersigned with respect to the Escrow Account, which, in its opinion, are in conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by a Joint Release Instruction, Final Determination, joint written instruction of the Company and the Trustee or Objection Noticeby order of a court of competent jurisdiction. The Escrow Agent may interplead all shall be protected in acting upon any notice, request, waiver, consent, receipt or other document reasonably believed by the assets held hereunder into a court of competent jurisdiction Escrow Agent to be signed by the proper party or may seek a declaratory judgment parties and shall not be liable with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered taken or omitted to be taken by it in good faith except to accordance with any instruction received by it hereunder. Concurrent with the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause execution of any direct loss to either Party. To the extent practicablethis Agreement, the Parties agree Company shall deliver to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything an authorized signers form in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of actionExhibit A to this Agreement.
Appears in 1 contract
Sources: Indenture (FiberTower CORP)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth hereinin this agreement on its part to be performed, which shall be deemed purely ministerial in nature, and no duties, including but not limited to other duties or obligations of any fiduciary duty, kind shall be impliedimplied nor read into this Agreement against or on the part of the Escrow Agent. The Escrow Agent accepts the duties and responsibilities under this Agreement as agent only, and no trust is intended to be, or is or will be, created hereby and the Escrow Agent shall owe no duties hereunder as trustee. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation limitation, the Business Combination AgreementUnderlying Agreements, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of the Underlying Agreements, any schedule or exhibit attached to this Agreement, or any other agreement between among the Parties, the terms and conditions of this Agreement will shall control the actions of only in connection with any matter related to the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or PartiesParties without inquiry and without requiring substantiating evidence of any kind. Concurrent with The Escrow Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementthe Escrow Asset, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 10 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due it or the Escrow FundsAsset 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reasonable reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, are ambiguous or conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent shall be inferred from determined solely by the terms express provisions of this Agreement, and the Escrow Agent shall not be liable except in respect of the performance of such agreements, even though reference thereto may be made duties and obligations as are specifically set forth in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of Unless specifically agreed to by the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of in this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided shall not be bound in any way by any agreement or contract among any of the Escrow Agent. parties to this Agreement, including the Stock Purchase Agreement.
(b) The Escrow Agent shall not be under no duty responsible in any manner whatsoever for any failure or inability of Buyer or Sellers' Agent to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with honor any of the provisions of this Agreement, it .
(c) The Escrow Agent shall be entitled fully protected in acting on and relying upon any written advice, certificate, notice, direction, instruction, request, or other paper or document which the Escrow Agent in good faith believes to be genuine (without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or service thereof) and to have been signed or presented by the proper party or parties, and may assume that any Person purporting to give such advice, certificate, notice, direction instruction or request or other paper or document has been duly authorized to do so.
(d) The Escrow Agent shall not be liable for any act reasonably done or step reasonably taken or reasonably omitted by it in good faith or for any mistake in fact or law, or for anything which it may reasonably do or refrain from taking any action and reasonably doing in connection herewith, except its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instructionown gross negligence, Final Determination, bad faith or Objection Notice. willful misconduct.
(e) The Escrow Agent may interplead all seek the assets held hereunder into a court advice of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof of this Agreement or its duties hereunder. The Escrow Agent will not , and it shall incur no liability and shall be liable for fully protected in respect of any action taken, omitted or suffered or omitted to be taken by it in good faith except in accordance with the written opinion of such counsel. If a controversy arises between one or more of the parties hereto, or between any the parties hereto and any Person not a party hereto, as to whether or not or to whom the Escrow Agent shall deliver the Escrow Note Fund or any portion thereof or as to any other matter arising out of or relating to this Agreement or the Escrowed Interests deposited hereunder, the Escrow Agent shall not be required to determine the same and need not make any delivery of the Escrow Note Fund or any portion thereof but may retain it without liability to anyone until the rights of the parties to the extent dispute shall have finally been determined in accordance with the terms and conditions contained herein, but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings. The Escrow Agent shall be entitled to assume that no such controversy has arisen unless it has received conflicting written notices from the parties to this Agreement.
(f) Buyer and Sellers shall reimburse and indemnify the Escrow Agent’s fraudAgent and its members, employees, and agents for, and hold it harmless against any loss, liability or expense including, but not limited to, reasonable counsel fees and disbursements incurred without gross negligence, bad faith or willful misconduct was on the cause part of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress Escrow Agent arising out of or recourse in connection with its acceptance of, or the performance of its duties and obligations under, this Agreement as well as the costs and expenses of defending against any dispute claim or liability arising out of or relating to this Agreement. Buyer and Sellers agree that any amount due under this Section 11(f) shall be borne equally by Buyer, on the one hand, and Sellers, on the other hand.
(g) The Escrow Agent hereby accepts its appointment and agrees to act as Escrow Agent under the terms and conditions of this Agreement. By such acceptance and agreement, however, the Escrow Agent shall not be deemed to have waived any right with respect to any transaction (other than with respect to a dispute involving the Escrow Agent) without making the its service as Escrow Agent a hereunder) between or among it and any other party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of actionparties hereto.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no other duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Purchase Agreement and any ancillary agreements thereto (other than this Agreement) (collectively, the “Underlying Agreements”), nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreementsUnderlying Agreement, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreementsany Underlying Agreement, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement and any schedule or exhibit attached to this Agreement, on the one hand, and any Underlying Agreement or any other agreement between among the Parties, on the other hand, in any such case with respect to the duties and obligations of the Escrow Agent (but not with respect to the duties and obligations of the Parties), the terms and conditions of this Agreement will control the actions of the Escrow Agentand any schedule or exhibit attached to this Agreement shall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder in accordance with the terms hereof and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer Authorized Representative(s), as applicable. The Escrow Agent shall not be liable to any Party, any beneficiary or any other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Amount, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 10 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required thereunder. 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 have no duty to solicit any payments which may be due it or the Escrow FundsAccount.
(b) The Escrow Agent shall not be 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 fraud, gross negligence or willful misconduct was the cause of any direct loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to to: (i) refrain from taking any action and its sole obligation shall be to keep safely all property (including without limitation the Escrow Amount) held in escrow until it shall be directed otherwise in given (y) a Joint Release Instruction, Final Determination, joint written direction executed by Authorized Representatives of both the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of the Escrow Agent may interplead all the assets held hereunder into or (z) 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 upon such court order and shall have no obligation to determine whether any such court order is final); or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any (ii) file an action or nonaction based on such declaratory judgmentin interpleader. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent.
(a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the PartiesParent, a Company Representative and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding
(b) In the event of any conflict between the terms and provisions of this Agreement with those of the Combination Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between Parent, a Company Representative or any other person or entity related to the PartiesEscrow Agent’s duties hereunder, the terms and conditions of this Agreement will control the actions of the Escrow Agent. shall control.
(c) The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer Parent or a Company Representative without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Shares, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 9 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due 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.
(d) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either Parent, a Company Representative or any beneficiary or the Escrow FundsShares. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents.
(e) The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either Parent, a Company Representative or any beneficiary of the Escrow Shares. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instructionwriting which eliminates such ambiguity or uncertainty to the satisfaction of the Escrow Agent, Final Determination, until an Order or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into judgement of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Sources: Stock Escrow Agreement (Digital Health Acquisition Corp.)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no other duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Purchase Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Escrow Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Escrow Agreement, those of the Purchase Agreement, any schedule or exhibit attached to the Escrow Agreement, or any other agreement between among the Parties, the terms and conditions of this Escrow Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it by a Party hereunder (but only to the extent such Party is authorized pursuant to the terms of this Escrow Agreement to provide such written notice, document, instruction or request) and reasonably believed by it to be genuine and to have been signed by the Authorized Representatives of such Party, without inquiry and presented by an authorized signer without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Fund, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such fund transfer instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 13 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required thereunder. 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any direct loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates, agents or attorneys, and shall be liable only for the gross negligence or willful misconduct (as finally adjudicated in a ActiveUS 136953958v.3 court of competent jurisdiction) of any such affiliate, agents or attorney. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall have no duty not be liable for any action taken, suffered or omitted to solicit be taken by it in accordance with, or in reliance upon, the advice or opinion of any payments which may be due it such counsel, accountants or the Escrow Fundsother skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing signed by the Authorized Representatives of the Buyer and the Securityholder Representative which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction jurisdiction. Any order or may seek judgment of a declaratory court must be accompanied by a written certification from the instructing Party attesting that such order or judgment is final and not subject to further proceedings or appeal along with respect a written instructions from an Authorized Representative of the instructing Party given to certain circumstances, effectuate such order or judgment and thereafter the Escrow Agent shall be fully relieved from entitled to conclusively rely upon any such certification and all liability instruction and shall have no responsibility to review the order or obligation with respect judgment or to make any determination as to whether such interpleaded assets order or any action or nonaction based on such declaratory judgmentjudgment is final. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same, other than to the extent such relates to the actual or alleged gross negligence or willful misconduct of the Escrow Agent. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.. ActiveUS 136953958v.3
Appears in 1 contract
Sources: Securities Purchase Agreement (Progress Software Corp /Ma)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the PartiesCompany and the Investors, in connection herewith, if any, including without limitation the Business Combination Distribution Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of the Distribution Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between among the PartiesCompany and the Investors, the terms and conditions of this Agreement will control the actions of the Escrow Agentshall control. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer the Company without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to the Company, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Account, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 11 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 11. 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 have no duty to solicit any payments which may be due it or the Escrow FundsAccount, including, without limitation, the Escrow Deposit 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.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct resulted in any loss to the Company. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party the Company hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Company which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree Company agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth hereinin this Section 2.21 and in the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no duties, including but other duties shall be implied. The Escrow Agent shall not limited be subject to any fiduciary dutyor other implied duties, regardless of whether a Default has occurred and is continuing. The Escrow Agent shall be impliednot have any duty to take any discretionary action or exercise any discretionary powers. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement, instrument or document between the Partiesor among any Loan Party and any Lender, in connection herewith, if anyherewith or otherwise, including without limitation any other Loan Document and including the Business Combination Aleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made except to the extent such provisions are repeated in this Agreement. Notwithstanding Section 2.21 or in the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow AgentAleris Increase Joinder Amendment. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice Escrow Drawdown Request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or PartiesDesignated Company. Concurrent with On the execution of this AgreementAleris Increase Joinder Effective Date, the Parties Designated Company shall deliver to the Escrow Agent authorized signers’ forms as provided by in the Escrow Agentform of Exhibit A to the Aleris Increase Joinder Amendment. The Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any 1234400.03-CHISR02A - MSW such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due to it or in respect of the Escrow FundsEscrowed Term Loans, interest, or any applicable fees (including arranger and commitment fees). In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto Person which, in its opinion, conflict with any of the provisions of this AgreementSection 2.21 or the Aleris Increase Joinder Amendment, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property the Escrowed Amounts held in escrow until it shall be directed otherwise in given a Joint Release Instruction, Final Determination, or Objection Noticejoint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the assets held hereunder Escrowed Amounts into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or under the Aleris Increase Joinder Amendment or its duties hereunderhereunder or thereunder. The Escrow Agent will not be liable for any action taken, suffered shall have no liability or omitted to be taken by it in good faith except obligation with respect to the extent that Escrowed Amounts except for the Escrow Agent’s fraud, willful misconduct or gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Loan Parties and the Aleris Incremental Term Lenders agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement or the Aleris Increase Joinder Amendment to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (x) damages, losses or expenses arising out of the services provided hereunder or under the Aleris Increase Joinder Amendment other than damages, losses or expenses which result from the Escrow Agent’s willful misconduct or gross negligence, or (y) special, indirect, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action. Should the Escrow Agent become liable for (i) the payment of any Taxes, including withholding taxes related to any Escrowed Term Loans or any other funds held by it in the Escrow Account, and including interest and penalties thereon, or (ii) any payment made hereunder, the Loan Parties agree, jointly and severally, to reimburse the Escrow Agent for such Taxes, interest, penalties and other amounts upon demand. Without limiting the foregoing, the Escrow Agent shall be entitled to deduct such Taxes, interest and penalties from the Escrowed Amounts prior to its release of the Escrowed Amounts in accordance with this Section 2.21.
Appears in 1 contract
Sources: Refinancing Amendment to Credit Agreement (Novelis Inc.)
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the PartiesParent and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Agreement, Merger Agreement or nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding .
(b) In the event of any conflict between the terms and provisions of this Agreement, those of the Merger Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between the PartiesParent and any other person or entity, the terms and conditions of this Agreement will control the actions of the Escrow Agent. shall control.
(c) The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer the Parent without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the proper Party Escrow Shares, or Parties. Concurrent with the execution of this Agreementany portion thereof, the Parties unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section X hereof and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section X hereof. 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 have no duty to solicit any payments which may be due 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.
(d) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either Thunder Power Shareholders or the Parent. The Escrow FundsAgent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents.
(e) The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the primary cause of any loss to either Thunder Power Shareholders or the Parent. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party the Parent and/or the Parent Stockholder Representatives hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of the Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Partiesparties and any other person or entity, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding .
(b) With respect to the rights, duties and obligations of the Escrow Agent only, in the event of any conflict between the terms and provisions of this Agreement with those of the Business Combination Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between among the Partiesparties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. shall control.
(c) The Escrow Agent may rely upon upon, and shall not be liable for acting or refraining from acting upon upon, any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer any of the proper Party parties without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be liable to any beneficiary, or Parties. Concurrent with other person or entity, for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementthe Contingent Consideration Shares, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 9 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 10. 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 have no duty to solicit any payments which may be due due, 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.
(d) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s fraud, gross negligence or willful misconduct was the primary cause of any loss to any party hereto or any beneficiary of the Contingent Consideration Shares. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents.
(e) The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s fraud, gross negligence or willful misconduct was the primary cause of any loss to any of the parties hereto or any beneficiary or the Escrow FundsContingent Consideration Shares. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instructionwriting which eliminates such ambiguity or uncertainty to the satisfaction of the Escrow Agent, Final Determination, until an Order or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into judgement of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Sources: Contingent Consideration Escrow Agreement (Alliance Entertainment Holding Corp)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent shall neither not be responsible forliable for any action taken or omitted by it in good faith and its liability hereunder shall be limited to liability for gross negligence or willful misconduct on its part. The Company and the Purchaser agree to save harmless, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms indemnify and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall defend the Escrow Agent be required for, from and against any loss, damage, liability, judgment, cost and expense whatsoever, by reason of, or on account of, any misrepresentation made to determine if any Person has complied with any such agreements, nor shall any additional obligations of the it or its status or activities as Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of under this Agreement will control except for any loss, damage, liability, judgment, cost or expense resulting from gross negligence or willful misconduct on the actions part of the Escrow Agent. The Escrow Agent may shall not be responsible for any failure or inability of any of the parties to perform or comply with 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 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 liable required to investigate the truth or accuracy of any statement contained in any such document or instrument. The Escrow Agent may assume in good faith that any person purporting to 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 to such party in 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. Each party further acknowledges that the Escrow Agent has acted, and acts, as legal counsel in certain matters to H.J. Meyers & Co., Inc. ("Meyers") Each party hereto waives all cl▇▇▇▇ ▇▇ ▇▇▇ nature of confli▇▇ ▇▇ interest against the Escrow Agent and further agrees that in the event of any dispute which arises hereunder, or otherwise between a party and Meyers, the Escrow Agent shall be free to represent Meyers. ▇▇ ▇▇ understood and further agreed that the Escrow ▇▇▇▇▇ 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 acting the payment of money from anyone other than the Company or refraining from 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 Joint Release Instructionnotice, Final Determinationrequest, certificate, approval, consent or Objection Notice furnished to it hereunder and other paper reasonably believed by it to be genuine and to have been be signed and presented by an authorized signer of the proper Party party or Parties. Concurrent 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 execution advice of such counsel; provided, however, that nothing in this subsection (e), nor any action taken by the Escrow Agent, or suffered or omitted by it in accordance with 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;
(f) not be bound by any modification, amendment, termination, cancellation, or recission of this Agreement, unless the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. The Escrow Agent same shall be under no duty in writing and signed by it;
(g) be entitled to inquire into or investigate the validity, accuracy or content of refrain from taking any such document, notice, instruction or request. The Escrow Agent shall have no duty action other than to solicit any payments which may be due keep all property held in escrow if it or the Escrow Funds. In the event that the Escrow Agent (i) shall be uncertain as to concerning its duties or rights hereunder hereunder, or (ii) shall receive instructions, have received claims or demands from any Party hereto party, or (iii) shall have received instructions from the Purchaser and/or the Company which, in its the Escrow Agent's opinion, are in conflict with any of the provisions of this Agreement, until it shall have received a final judgment by a court of competent jurisdiction;
(h) have no liability for following the instructions herein or expressly provided for herein, or the written instructions given by the Purchaser and/or 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) business days prior to the date specified for such resignation to take effect, and upon the effective date of such resignation all cash and other payments and all other property then held by the Escrow Agent hereunder shall be entitled delivered by it to refrain from taking any action 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 its terminate. If no 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 obligation 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 escrow until it shall be directed otherwise in accordance with the directions of a Joint Release Instruction, Final Determination, final order or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of actionjurisdiction.
Appears in 1 contract
Sources: Securities Purchase Agreement (Greenman Technologies Inc)
Escrow Agent. The Escrow Agent undertakes for purposes of this Agreement shall be: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, P.A., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Tel. (▇▇▇) ▇▇▇-▇▇▇▇, Fax. (▇▇▇) ▇▇▇-▇▇▇▇. Except for the obligations contained in Section 6.4 of this Agreement, the Escrow Agent is not a party to and is not bound by any other agreement between Company and Purchaser. The duties and obligations of the Escrow Agent shall be determined solely by the express provisions of 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.
(i) The Escrow Agent acts hereunder as a depository only and is not responsible for or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of any funds, documents or other materials deposited with it. The Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the subject matter of this Agreement unless it is requested to do so by one of the parties and is indemnified by such requesting party to the Escrow Agent’s satisfaction against the cost and expenses including attorneys’ fees of such defense, unless arising from the Escrow Agent’s bad faith or willful misconduct. The Escrow Agent shall not be required to institute legal proceedings of any kind. The Escrow Agent shall not be required to perform only such any acts which will violate any law or applicable rules of any governmental agency.
(ii) Company and Purchaser, jointly and severally, covenant and agree to indemnify the Escrow Agent and hold it harmless without limitation from and against any loss, liability or expense of any nature incurred by the Escrow Agent arising out of or in connection with this Agreement or with the administration of its duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no dutieshereunder, including but not limited to legal fees and other costs and expenses of defending or preparing to defend against any fiduciary dutyclaim or liability in the premises, unless such loss, liability or expense shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided caused by the Escrow Agent. 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, bad faith, or willful misconduct was the cause of any direct loss to either Party. To the extent practicablemisconduct, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in hi no event shall the Escrow Agent be liable, liable for any special, indirect, punitive, incidental, special or consequential losses or damages of any kind whatsoever damages.
(including but not limited to lost profits), even if the iii) If Escrow Agent has been advised of is uncertain for any reason whatsoever as to its duties or rights hereunder, notwithstanding anything to the likelihood contrary herein, Escrow Agent may decline to take any action whatsoever seek Court intervention for adjudication and Escrow Agent shall be entitled to rely upon the decision of such losses or damages and regardless of the form of actioncourt.
Appears in 1 contract
Sources: Stock Purchase Agreement (Genesis Group Holdings Inc)
Escrow Agent. The (a) Escrow Agent undertakes may act upon any instrument or other writing believed by it in good faith to perform only 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 reimbursed by the Company for its reasonable expenses incurred in connection with the performance by it of such duties services. Escrow Agent will receive a fee of $5,000 upon the disposition of the Escrowed Shares. The Company shall be responsible for such fee.
(c) Until such time as the Escrowed Shares are expressly delivered pursuant to Section 4 above, Firm Success shall be entitled to vote the Escrowed Shares or other securities in the Escrow Fund, provided that Firm Success shall not take any actions or inactions which would have a material adverse effect on the provisions set forth hereinunder 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 deemed purely ministerial in naturea 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 no duties, including but not limited thereupon it shall succeed to any fiduciary duty, all the rights and duties of Escrow Agent hereunder and shall be implied. The 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 responsible for the identity, authority or rights of any person, firm or corporation, executing or delivering or purporting to execute or deliver this Escrow Agreement or any document or security deposited hereunder or any endorsement thereof or assignment thereof.
(f) Escrow Agent shall have no duties or responsibilities except as expressly provided in this Escrow Agreement and shall neither be responsible for, nor chargeable with, knowledge of, obligated to recognize nor have any requirements to comply with, the terms and conditions of liability or responsibility arising under any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the agreement to which Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreementsis not a party, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agentherein or a copy thereof attached hereto. The Escrow Agent may rely upon Company and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In the event Firm Success acknowledge that the Escrow Agent shall be uncertain as has rendered and will continue to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled render legal advice to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances▇▇▇▇▇▇▇, and thereafter be fully relieved from the Company and Firm Success hereby waive any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel claims of its selection in the event conflict of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken interest by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood reason of such losses or damages and regardless of the form of actionlegal representation.
Appears in 1 contract
Sources: Performance Milestone Shares Escrow Agreement (Parkview Group Inc)
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no other duties, including but not limited to any fiduciary dutyduties, shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the PartiesParties (other than a Joint Release Instruction, a Notice of Consummation, Final Determination, or Request), in connection herewith, if any, including including, without limitation limitation, the Business Combination Purchase Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely in good faith upon and shall not be liable in the absence of its fraud, gross negligence or willful misconduct for acting or refraining from acting upon any Joint Release Instruction, a Notice of Consummation, Final Determination, or Objection Notice Request furnished to it hereunder in accordance with the terms hereof and reasonably believed by it in good faith to be genuine and to have been signed and presented by an authorized signer Authorized Representative of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signersAuthorized Representatives’ forms in the form of Exhibit A-1 and Exhibit A-2 attached hereto. Other than as provided by set forth herein, the Escrow Agent. 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 have no duty to solicit any payments which may be due to it or to the Escrow FundsFund. In the event that the Escrow Agent shall be is uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its reasonable opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, a Notice of Consummation, Final Determination, or Objection NoticeRequest; provided that the Escrow Agent shall promptly notify the Parties of such uncertainty or apparent conflict. The In the event of a dispute pursuant to this Agreement, the Escrow Agent may interplead all of the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable shall have no liability for any action taken, suffered or omitted to be taken by it in good faith except to in the extent event that the Escrow Agent’s fraud, gross negligence, negligence or willful misconduct was the cause of any direct loss to either Party. To the extent reasonably practicable, the Parties agree each Party agrees to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, in no event shall the Escrow Agent be liable, liable for any special, indirect, punitive, incidental, incidental or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Escrow Agent. 4.1 The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth hereinprovided herein (and no implied duties), which shall be deemed purely ministerial in nature, and shall under no duties, including but not limited to any circumstances be deemed a fiduciary duty, shall be impliedfor the Parties. The Escrow Agent shall be neither be responsible for, nor chargeable with, with knowledge of, nor or have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, Parties in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding .
4.2 In the event of any conflict between the terms and provisions of this Agreement and those of any other agreement between among the Partiesparties to this Agreement, the terms and conditions of this Agreement will control shall control.
4.3 Subject to Section 11, the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or Partiesperson(s) without inquiry and without requiring substantiating evidence of any kind. Concurrent with the execution of this AgreementSubject to Section 11, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. The Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such notice, document, notice, instruction or request. .
4.4 The Escrow Agent shall have no duty to solicit any payments which may be due it to it, to the Escrow Fund or to the Escrow Account, including, without limitation, the Escrow Deposit, nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with the Escrow Agent hereunder.
4.5 Under no circumstances shall the Escrow Agent be obliged to make any payment from the Escrow Account, where such payment would result in a negative balance in the Escrow Account.
4.6 The Escrow Agent may exercise any of its powers and perform any of its duties hereunder directly or through agents or attorneys who may be affiliated entities (defined below) (and shall be liable only for its gross negligence or willful misconduct (as finally adjudicated in a court of competent jurisdiction) in the selection of any such agent or attorney, except that the Escrow Agent shall accept the same level of liability for any affiliated entity as for itself). The Parties irrevocably authorize the Escrow Agent to disclose information relating to any of the Parties or the Escrow FundsFund to such agent or attorney without further notice to or consent from any of the Parties. For the purpose of this Agreement, “affiliated entities” means any subsidiaries, branches or sub-branches of the Escrow Agent.
4.7 The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow. Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons.
4.8 In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, are insufficient or incomplete or conflict with any of the provisions of this AgreementAgreement or any applicable law, it rule, regulation, order, ruling or directive, or any rule, policy, code, requirement or determination of any government, regulatory or self-regulatory body or market practice, the Escrow Agent shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held by it in escrow until it shall be directed otherwise given a direction in writing by the Parties which eliminates such ambiguity or uncertainty to the satisfaction of the Escrow Agent or by a Joint Release Instruction, Final Determination, final and non-appealable order or Objection Notice. judgment of a court of competent jurisdiction.
4.9 The Escrow Agent may interplead all engage or be interested in any financial or other transaction with either or both of the assets held hereunder into a court of competent jurisdiction Parties or may seek a declaratory judgment with respect to certain circumstancesaffiliate(s) thereof, and thereafter be fully relieved from may act on the instructions of, or as depositary, trustee or agent for, any and all liability committee or obligation with respect to body of holders of obligations of such interpleaded assets Party or any action or nonaction based on such declaratory judgment. The affiliate(s), as freely as if it were not the Escrow Agent may consult with legal counsel hereunder.
4.10 The rights and remedies of its selection the Escrow Agent set forth in the event this Agreement shall be cumulative, and not exclusive, of any dispute rights and remedies available to it at law or question as to the meaning equity or construction of any of the provisions hereof or its duties hereunder. otherwise.
4.11 The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) among themselves without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, duties and no duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Merger Agreement or the Loan Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. Agent The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice Instruction furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by in the Escrow Agentform of Exhibit A-1 and Exhibit A-2 attached hereto. 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 have no duty to solicit any payments which may be due it or the Escrow FundsAccount. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all of the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable shall have no liability for any action taken, suffered or omitted to be taken by it in good faith except or obligation with respect to the extent that Escrow Amount except for the Escrow Agent’s fraud, willful misconduct or gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (a) damages, losses or expenses arising out of the services provided hereunder, other than damages, losses or expenses which result from the Escrow Agent’s fraud, gross negligence or willful misconduct, or (b) special, indirect, punitive, incidental, incidental or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Purchase Agreement, nor shall the Escrow Agent be required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice joint written instructions executed by the Parties furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A-1 and Exhibit A-2 attached hereto, as provided by the Escrow Agentapplicable. 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, Settlement or Objection NoticeArbitration Award. The Escrow Agent may interplead all of the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered shall have no liability or omitted to be taken by it in good faith except obligation with respect to the extent that Escrow Funds except for the Escrow Agent’s fraud, willful misconduct or gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, directly or indirectly, for any (a) damages, losses or expenses arising out of the services provided hereunder, other than damages, losses or expenses which result from the Escrow Agent’s fraud, gross negligence or willful misconduct, or (b) special, indirect, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which Agent's responsibility and liability under this Agreement shall be deemed purely ministerial in naturelimited as follows:
(a) the Escrow Agent does not represent, and no duties, including but not limited warrant or guaranty to any fiduciary duty, shall be implied. The the holders of the Notes from time to time the performance of the Issuers or the Trustee; (b) the Escrow Agent shall neither be have no responsibility to the Issuers or the holders of the Notes or the Trustee from time to time as a consequence of performance or nonperformance by the Escrow Agent hereunder, except for any gross negligence or wilful misconduct of the Escrow Agent;
(c) the Issuers shall remain solely responsible forfor all aspects of the Issuers' business and conduct; and (d) the Escrow Agent is not obligated to supervise, nor chargeable with, knowledge of, nor have inspect or inform the Issuers or any requirements to comply with, the terms and conditions third party of any other agreement, instrument matter referred to above. No implied covenants or document between obligations shall be inferred from this Agreement against the Parties, in connection herewith, if any, including without limitation the Business Combination AgreementEscrow 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 Temporary Cash Investments held by it hereunder, including, without limitation any liability for any delay not resulting from gross negligence or wilful misconduct in such investment, reinvestment or liquidation, or for any loss of principal or income incident to any such delay. The Escrow Agent shall be 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 Issuers or the Trustee in compliance with the provisions of this Agreement without being required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from authenticity or the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms correctness of any other agreement between fact stated therein or the Parties, the terms and conditions propriety or validity of this Agreement will control the actions of the Escrow Agentservice thereof. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting act in reliance upon any Joint Release Instruction, Final Determination, instrument comporting with the provisions of this Agreement or Objection Notice furnished to it hereunder and reasonably signature believed by it to be genuine and may assume that any person purporting to have give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been signed duly authorized to do so. The Escrow Agent may act pursuant to the advice of counsel chosen by it with respect to any matter relating to this Agreement and presented by an authorized signer (subject to clause (b) of the proper Party first paragraph of Section 4) shall not be liable for any action taken or Partiesomitted in accordance with such advice. Concurrent The Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder. In the execution event of any ambiguity in the provisions of this AgreementAgreement with respect to any funds or property deposited hereunder, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by 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 AgentAgent shall not be or become liable for its failure or refusal to comply with conflicting claims, demands or instructions. The Escrow Agent shall be under no duty entitled to inquire into refuse to act until either any conflicting or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, adverse claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into have been finally determined by a court of competent jurisdiction or may seek settled by agreement between the conflicting claimants as evidenced in a declaratory judgment with respect writing, satisfactory to certain circumstancesthe Escrow Agent, or the Escrow Agent shall have received security or an indemnity satisfactory to the Escrow Agent sufficient to save the Escrow Agent harmless from and thereafter be fully relieved from against any and all loss, liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentexpense which the Escrow Agent may incur by reason of its acting. The Escrow Agent may consult with legal counsel 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 selection own funds or otherwise incur any financial liability in the event of any dispute or question as to the meaning or construction performance of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which Agent's responsibility and liability under this Agreement shall be deemed purely ministerial in naturelimited as follows:
(a) the Escrow Agent does not represent, and no duties, including but not limited warrant or guaranty to any fiduciary duty, shall be implied. The the holders of the Notes from time to time the performance of the Issuers or the Trustee; (b) the Escrow Agent shall neither be have no responsibility to the Issuers or the holders of the Notes or the Trustee from time to time as a consequence of performance or nonperformance by the Escrow Agent hereunder, except for any gross negligence or wilful misconduct of the Escrow Agent;
(c) the Issuers shall remain solely responsible forfor all aspects of the Issuers' business and conduct; and (d) the Escrow Agent is not obligated to supervise, nor chargeable with, knowledge of, nor have inspect or inform the Issuers or any requirements to comply with, the terms and conditions third party of any other agreement, instrument matter referred to above. No implied covenants or document between obligations shall be inferred from this Agreement against the Parties, in connection herewith, if any, including without limitation the Business Combination AgreementEscrow 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 Marketable Securities held by it hereunder, including, without limitation any liability for any delay not resulting from gross negligence or wilful misconduct in such investment, reinvestment or liquidation, or for any loss of principal or income incident to any such delay. The Escrow Agent shall be 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 Issuers or the Trustee in compliance with the provisions of this Agreement without being required to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from authenticity or the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms correctness of any other agreement between fact stated therein or the Parties, the terms and conditions propriety or validity of this Agreement will control the actions of the Escrow Agentservice thereof. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting act in reliance upon any Joint Release Instruction, Final Determination, instrument comporting with the provisions of this Agreement or Objection Notice furnished to it hereunder and reasonably signature believed by it to be genuine and may assume that any person purporting to have give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been signed duly authorized to do so. The Escrow Agent may act pursuant to the advice of counsel chosen by it with respect to any matter relating to this Agreement and presented by an authorized signer (subject to clause (b) of the proper Party first paragraph of Section 4) shall not be liable for any action taken or Partiesomitted in accordance with such advice. Concurrent The Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder. In the execution event of any ambiguity in the provisions of this AgreementAgreement with respect to any funds or property deposited hereunder, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by 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 AgentAgent shall not be or become liable for its failure or refusal to comply with conflicting claims, demands or instructions. The Escrow Agent shall be under no duty entitled to inquire into refuse to act until either any conflicting or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, adverse claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into have been finally determined by a court of competent jurisdiction or may seek settled by agreement between the conflicting claimants as evidenced in a declaratory judgment with respect writing, satisfactory to certain circumstancesthe Escrow Agent, or the Escrow Agent shall have received security or an indemnity satisfactory to the Escrow Agent sufficient to save the Escrow Agent harmless from and thereafter be fully relieved from against any and all loss, liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentexpense which the Escrow Agent may incur by reason of its acting. The Escrow Agent may consult with legal counsel 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 selection own funds or otherwise incur any financial liability in the event of any dispute or question as to the meaning or construction performance of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Sources: Interest Escrow Agreement (Digital Television Services of Kansas LLC)
Escrow Agent. The Escrow Agent undertakes to perform only such duties Purchaser and Seller hereby engage Chicago Title, as are expressly agent for Commonwealth Title Insurance Company (attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) at the office set forth herein, which shall be deemed purely ministerial in nature, Section 12.3 (“Escrow Agent”) to act as agent for the parties in closing this transaction and no duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, carrying out the terms of this Agreement on the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor set forth herein. This Agreement shall the Escrow Agent be required constitute escrow instructions to determine if any Person has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction; provided, Final Determinationhowever, or Objection Notice furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. 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 have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of inconsistency between the provisions hereof and the provisions of any escrow instructions requested by Escrow Agent, the terms hereof shall govern and control. “Opening of Escrow” shall mean the date on which Escrow Agent receives one (1) fully executed counterpart of this Agreement from Seller and Purchaser together with the Deposit. Escrow Agent shall give Seller and Purchaser written notice of the date of Opening of Escrow and its signature hereto indicating its acceptance of the escrow instructions. Escrow and the transaction contemplated hereby shall close (referred to herein interchangeably as the “Close of Escrow,” the “Closing,” or its duties hereunderby similar words) when all documents and funds necessary to close this transaction have been received by Escrow Agent and the Deed conveying title to the Properties to Purchaser has been recorded in accordance with Section 2.2. The This Agreement will constitute the sole escrow instructions to Escrow Agent, and the standard form escrow instructions of Escrow Agent will not be liable used for this transaction. Specifically, the parties have rejected any action taken, suffered or omitted to be taken by it provisions in good faith except standard form escrow instructions pertaining to the extent that procedure for cancellation (such as the 13-day notice provision) as well any provisions indemnifying Escrow Agent’s fraud, gross Agent for its negligence, or willful misconduct was giving a broker or other third party any interest in the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in escrow for this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of actiontransaction.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cornerstone Core Properties REIT, Inc.)
Escrow Agent. The 14.1 All Deposits paid by BUYER under this Agreement shall be held in escrow by Escrow Agent undertakes to perform only such duties as are expressly set forth herein, which (the "Escrow Agent") and shall be deemed purely ministerial in naturedeposited by the Escrow Agent into an interest bearing bank account at First Security Bank of Utah, and no duties, including but not limited to any fiduciary duty, shall be implied. N.
A. The Escrow Agent shall neither hold such amounts together with all interest accrued thereon (the "Escrow Funds") in such account until such time as it receives:
a) A written notice signed by the Buyer and the Seller directing it to release all or a portion of the Escrow Funds to the party specified in such notice; or
b) A final order, judgment or decree of a court directing the disposition of the Escrow Funds.
14.2 The Escrow Agent shall not be responsible forfor the genuineness of any signature or for the genuineness or collectibility of any check and may rely conclusively and shall be protected in relying upon, nor chargeable withand shall have no duty or obligation to investigate, knowledge ascertain the correctness or status of, nor have any requirements judgment, order, decree, certificate, notice, request, consent, statement or other instrument delivered to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, it in connection herewith, if any, including without limitation the Business Combination Agreement, nor with its activities hereunder. In no event shall the Escrow Agent be required liable for any act performed or omitted to determine if be performed by it hereunder in the absence of willful and wanton misconduct, and in no event shall it be liable or responsible for any Person has complied with failure of the banking institution in which the Escrow Funds are held to pay any amount at the Escrow Agent's direction or for any failure of such agreements, nor shall any additional obligations of amounts to be covered by deposit insurance. BUYER and SELLER hereby jointly and severally indemnify and hold the Escrow Agent be inferred harmless from any damage, cost, liability or expense (including, but not limited to, legal fees either paid to retained attorneys or representing the terms fair value of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will control the actions of the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided legal services rendered by the Escrow Agent. 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 have no duty to solicit any payments ) which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as may incur by reason of its actions hereunder, without prejudice to its duties any right which the SELLER or rights hereunder the BUYER may have to recover from the other for any such damage, cost, liability or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any expense. Without limiting the generality of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstandingforegoing, in no event shall the Escrow Agent be liablerequired to take any action unless and until it has been indemnified to its satisfaction by the party requesting such action.
14.3 In the event that a dispute shall arise as to the disposition of the Deposit, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised shall have the right, at its option, to either hold the same or deposit the same with a court of the likelihood competent jurisdiction pending decision of such losses court, and the Escrow Agent shall be entitled to rely upon the final decision of such court no longer subject to appeal.
14.4 The Escrow Agent shall be entitled to rely upon any judgment, certification, demand or damages other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein, the propriety or validity thereof, or the jurisdiction of a court issuing any such judgment. The Escrow Agent may act in reliance upon (i) any instrument or signature believed to be genuine and regardless duly authorized, and (ii) advice of the form of actioncounsel in reference to any matter or matters connected therewith.
Appears in 1 contract
Escrow Agent. The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no duties, including but not limited to any fiduciary duty, other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Business Combination Asset Purchase Agreement, nor shall the Escrow Agent be required to determine if any Person person or entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. Notwithstanding In the event of any conflict between the terms and provisions of this Agreement, those of the Asset Purchase Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between among the Parties, the terms and conditions of this Agreement will shall control the actions of only in connection with any matter related to the Escrow Agent. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any Joint Release Instructionwritten notice, Final Determinationdocument, instruction or Objection Notice request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and or presented by an authorized signer of the proper Party or PartiesParties without inquiry and without requiring substantiating evidence of any kind. Concurrent with The Escrow Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the execution transfer or distribution of this Agreementthe Escrow Fund, the Parties or any portion thereof, unless such instruction shall deliver have been delivered to the Escrow Agent authorized signers’ forms as provided by in accordance with Section 11 below and the Escrow AgentAgent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 11. 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 have no duty to solicit any payments which may be due it or the Escrow FundsFund nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to either Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reasonable reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise given a direction in a Joint Release Instruction, Final Determination, writing by the Parties which eliminates such ambiguity or Objection Notice. The uncertainty to the satisfaction of the Escrow Agent may interplead all the assets held hereunder into or by a final and non-appealable order or judgment of a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgmentjurisdiction. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, or willful misconduct was the cause of any direct loss to either Party. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, for any special, indirect, punitive, incidental, or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses or damages and regardless of the form of action.
Appears in 1 contract
Sources: Asset Purchase Agreement (DraftDay Fantasy Sports, Inc.)
Escrow Agent. The Escrow Agent undertakes to perform shall have only such those duties as are specifically and expressly set forth provided herein, which shall be deemed purely ministerial in nature, and no other duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, has no knowledge of, nor have any requirements obligation to comply with, the terms and conditions of any other agreement, instrument or document agreement between the Parties, in connection herewith, if any, including without limitation the Business Combination Agreement, nor shall the Escrow Agent be required to determine if any Person Party has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreementother agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement will shall control the actions of the Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting any written notice, document, instruction or refraining from acting upon any Joint Release Instruction, Final Determination, or Objection Notice furnished to it hereunder and reasonably request delivered by the Parties believed by it to be genuine and to have been signed and presented by an authorized signer Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms as provided by the Escrow Agent. The 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. The Escrow Agent shall have no duty to solicit any payments which may be due it or the Escrow Funds. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in a Joint Release Instruction, Final Determination, or Objection Notice. The Escrow Agent may interplead all the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent will not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent’s fraud, gross negligence, negligence or willful misconduct was the cause of any direct loss to either Party. To Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the extent practicableevent 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 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 executed by Authorized Representatives of the Parties which eliminates such conflict or (ii) a court order issued by a court of competent jurisdiction (it being understood that Escrow Agent shall be entitled conclusively to rely and act 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. Escrow Agent shall have no duty to solicit any payments which may be due it or the Funds, including, without limitation, the Parties agree to pursue any redress or recourse in connection with any dispute (other than with respect to a dispute involving Escrow Deposit nor shall the Escrow Agent) without making Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. The Parties grant to the Escrow Agent a party lien and security interest in the Funds in order to secure any indemnification obligations of the Parties or obligation for fees or expenses owed to the sameEscrow Agent hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable, liable for any special, indirectincidental, punitive, incidental, indirect or consequential losses loss or damages damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such losses loss or damages damage and regardless of the form of action; provided, however, that the foregoing shall not apply to the extent such losses or damage is caused by fraud on the part of Escrow Agent.
Appears in 1 contract
Sources: Revolving Credit Agreement (Brighthouse Financial, Inc.)