Escrow Agent. Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. Escrow Agent has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. Escrow Agent shall not be 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 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 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. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 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. The Escrow Agent shall have undertakes to perform only those such duties as are specifically and expressly provided set forth herein, which shall be deemed purely ministerial in nature, and no other duties duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement 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 Party Person has complied with any other agreementsuch 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 shall will control the actions of the Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written noticeJoint Release Instruction, documentFinal Determination, instruction or request delivered by the Parties Objection Notice furnished to it hereunder and reasonably believed by it to be genuine and to have been signed and presented by an Authorized Representative(s)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 applicable, without inquiry and without requiring substantiating evidence of any kind and 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 ’s fraud, gross negligence 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 To the event Escrow Agent receives instructionsextent practicable, 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 agree to pursue any redress or by recourse in connection with any dispute (other than with respect to a final court order or (bdispute involving the Escrow Agent) file an action in interpleader. Escrow Agent shall have no duty to solicit any payments which may be due it, including, without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable liable, for any special, indirect, punitive, incidental, punitive, indirect or consequential loss losses or damage 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 loss losses or damage 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 acceptance by the Escrow Agent of his duties hereunder is subject to the following terms and conditions, which the parties to this Agreement hereby agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent:
3.1 The Escrow Agent shall have only those duties as are specifically and expressly provided hereinnot be responsible or liable in any manner whatever for the sufficiency, which correctness, genuineness or validity of any cash, Shares, certificates, investments or other amounts deposited with or held by him.
3.2 The Escrow Agent shall be deemed purely ministerial protected in nature, and no other duties shall be implied. Escrow Agent has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely acting upon any written notice, documentcertificate, instruction instruction, request or request delivered by the Parties other paper or document believed by it him to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into the proper party or investigate the validity, accuracy or content of any such document, notice, instruction or request. parties.
3.3 The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it act done hereunder except in good faith except to the extent that Escrow Agent's gross negligence case of his reckless 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 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, actions taken in bad faith.
3.4 The Escrow Agent shall not be entitled either obligated or permitted to (a) refrain from taking investigate the correctness or accuracy of any action until it shall be given a joint written direction executed by Authorized Representatives of document or to determine whether or not the Parties which eliminates signatures contained in said documents are genuine or to require documentation or evidence substantiating any such conflict document or by a final court order or (b) file an action in interpleader. signature.
3.5 The Escrow Agent shall have no duty to solicit duties as Escrow Agent except those that are expressly set forth herein, and in any payments which may be due itmodification or amendment hereof; provided, includinghowever, without limitation, the Funds nor that no such modification or amendment hereof shall affect his duties unless the Escrow Agent shall have given his written consent thereto. The Escrow Agent shall not be prohibited from owning an equity interest in the Company, the Buyer, another buyer, any duty of their respective subsidiaries or obligation to confirm any third party that is in any way affiliated with or verify conducts business with either the accuracy Company, the Buyer or correctness another buyer.
3.6 The Company and the Buyer specifically acknowledge that the Escrow Agent is a practicing attorney, and has or may have worked with the Company, the Buyer, the placement agent or finder on the transaction, one or more stockholders of any amounts deposited the Company, 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 Escrow Agent with it hereunder. Anything in this Agreement respect to the contrary notwithstandingsaid 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 Securities Purchase Agreement, and is satisfied in no event shall its sole discretion with the form and content of the documentation drafted by the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage Agent. Without further disclosure of any kind whatsoever (including but not limited to lost profits)any party, even if the Escrow Agent has been advised may own, and shall not be prohibited from owning, an equity interest in the Company and/or may be an equity owner or lender of the likelihood of such loss Buyer, another buyer or damage and regardless any other of the form persons noted above, and may increase or sell any such interest, so long as in accordance with applicable law. The said parties hereby waive any objection to the Escrow Agent so acting based upon conflict of actioninterest, lack of impartiality or otherwise. The Escrow Agent agrees to act impartially and in accordance with the terms of this Agreement and with the parties' respective instructions, so long as they are not in conflict with the terms of this Agreement.
Appears in 2 contracts
Sources: Stock Escrow and Security Agreement (Upside Development Inc), Stock Escrow and Security Agreement (Upside Development Inc)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between Parent or Sponsor and any other person or entity, in connection herewith, if any, including without limitation the Parties, Merger Agreement or nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. 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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the applicable person without inquiry and without requiring substantiating evidence of any kind 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 Escrow Shares, 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 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 Shares nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder.
(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 ’s fraud, gross negligence or willful misconduct was the primary cause of any direct loss to either Partyloss. 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 receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or uncertainty to the satisfaction of the Escrow Agent or by a final court and non-appealable 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 Funds nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness judgment of any amounts deposited with it hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage a court of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actioncompetent jurisdiction.
Appears in 2 contracts
Sources: Merger Agreement (FS Development Corp.), Escrow Agreement (FS Development Corp.)
Escrow Agent. (a) The duties of the Escrow Agent shall have only those duties as are specifically and expressly provided herein, which hereunder shall be deemed purely ministerial in nature, and . Under no other duties shall be implied. Escrow Agent has no knowledge of, nor any requirement to comply with, circumstances will the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required deemed to determine if any Party has complied with be a fiduciary to Buyer or the Securityholder Representative or any other agreementperson under this Escrow Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and The Escrow Agent shall be under no duty obligated to inquire into act only as specifically set forth in this Agreement. The Escrow Agent is hereby authorized to comply with any orders, judgments or investigate the validity, accuracy or content decrees of any such document, notice, instruction or request. Escrow Agent arbitrator and of any court and 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 as a result of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the event Escrow Agent receives instructions, claims or demands from any Party hereto which conflict compliance with the provisions same.
(b) As to any legal questions arising in connection with the administration of this Agreement, or if the Escrow Agent receives conflicting instructions 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 Parties, payee or recipient a receipt therefor.
(e) The Escrow Agent shall be entitled either to (a) refrain from taking any action until contemplated by this Agreement in the event it becomes aware of any dispute between the Securityholder Representative and 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 given a joint written direction executed paid 50% by Authorized Representatives Buyer and 50% by the Securityholder Representative (on behalf of the Parties Securityholders).
(g) In the event of any disagreement among the parties hereto resulting in adverse claims or demands being made in connection with any portion of the Escrow Amount as a result of which eliminates such conflict or by a final court order or (b) file an the Escrow Agent is, in good faith, in reasonable doubt as to what action in interpleader. it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Amount until the Escrow Agent shall have no duty to solicit received (i) a Final Order directing delivery of the Escrow Amount, or (ii) a Joint Written Notice, in which event Escrow Agent shall disburse such portion of the Escrow Amount in accordance with such Final Order or Joint Written Notice. Notwithstanding the foregoing, at any payments which may be due it, including, without limitation, the Funds nor shall time the Escrow Agent have may file an interpleader action in any duty or obligation to confirm or verify court of competent jurisdiction, and upon the accuracy or correctness filing thereof, the Escrow Agent shall be relieved of any amounts deposited with it hereunder. Anything in this Agreement all liability as to the contrary notwithstandingEscrow Amount and shall be entitled to recover reasonable attorneys’ fees, expenses and other costs incurred in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of commencing and maintaining any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of interpleader action.
Appears in 2 contracts
Sources: Unit Purchase Agreement (LendingTree, Inc.), Unit Purchase Agreement (LendingTree, Inc.)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the PartiesPurchaser, the Stockholder Representative and any other person or entity, in connection herewith, including the Merger Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement
(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 shall control the actions of Escrow Agent. control.
(c) The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the Purchaser or the Stockholder Representative without inquiry and without requiring substantiating evidence of any kind 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 Escrow Shares, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 9 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 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 direct loss to either Partythe Purchaser, the Stockholder Representative or any beneficiary or 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 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 receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either to (a) refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or by uncertainty to the satisfaction of the Escrow Agent, until a final court and non-appealable order or (b) file an action judgement of a court of competent jurisdiction agrees to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making 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 a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
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 shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between Parent and LPHL and any other person or entity, in connection herewith, if any, including without limitation the Parties, Underlying Agreement or nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. 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 shall control the actions of Escrow Agent. control.
(b) The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and reasonably believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, 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 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 Escrow Shares, 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 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 ’s gross negligence or willful misconduct or the Escrow Agent’s material breach of this Agreement was the primary cause of any direct loss to either Partyany 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 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 any of Parent, LPHL or the Indemnitees. In the event that the Escrow Agent receives 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 Parent or LPHL which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either to (a) refrain from taking any action and its sole obligation shall be to keep the Escrow Shares in escrow until it shall be given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or uncertainty to the satisfaction of the Escrow Agent or by a final court and non-appealable 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 Funds nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness judgment of any amounts deposited with it hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage a court of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actioncompetent jurisdiction.
Appears in 2 contracts
Sources: Escrow Agreement (China Cardiovascular Focus LTD), Escrow Agreement (LPH Investments LTD)
Escrow Agent. 4.1 In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent shall have only those duties as are specifically will act honestly and expressly provided hereinin 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 shall the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be deemed purely ministerial put unto for or by reason or on account of its acting pursuant to this Agreement or anything in natureany 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, and no other duties shall be implied. the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Section 4.2 against its costs of such proceedings.
4.4 The Escrow Agent will have no knowledge of, nor responsibility in respect of loss of the Stock Cancellation Documents except the duty to exercise such care in the safekeeping thereof as it would exercise if the Stock Cancellation Documents belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel.
4.5 The Escrow Agent will not be bound in any requirement to comply with, way by any contract between the other parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of any other agreement between the Parties, nor shall Escrow Agent will be to hold the Stock Cancellation Documents as herein directed and to deliver the same to such persons and to comply with other such conditions as are herein set forth. The Escrow Agent will not be required to determine pass upon the sufficiency of any of the written notices pursuant to Section 2 or the Stock Cancellation Documents to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or otherwise authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential for their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with 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 court order, or if the delivery of the Stock Cancellation Documents is stayed or enjoined by any court order or if any Party has complied with court order, judgment or decree is made or entered affecting the Stock Cancellation Documents or affecting any other agreement. Notwithstanding act by the terms of any other agreement between the PartiesEscrow Agent, the terms Escrow Agent may, in its sole discretion, obey and conditions comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement shall control to the actions of Escrow Agentcontrary. If the Escrow Agent obeys and complies with any such writs, orders, judgments or decrees, it will not be liable to any of the parties hereto or to any other person, firm, corporation or other entity by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may conclusively rely upon 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 written noticeand all notices and warnings which may be given to it by any of the parties hereto or by any other person, documentfirm, instruction association or request delivered by corporation. It will, however, at its sole discretion, obey the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s)order, as applicable, without inquiry and without requiring substantiating evidence judgment or decree of any kind court of competent jurisdiction, and Escrow Agent shall be under no duty it is hereby authorized to inquire into comply with and obey such orders, judgments or investigate the validitydecrees and, accuracy or content in case of any such documentcompliance, notice, instruction or request. Escrow Agent it shall not be liable for by reason thereof to any action takenof the parties hereto or to any other person, suffered firm, association, corporation or omitted to other entity, even if thereafter any such order, judgment or decree may be taken by it in good faith except reversed, modified, annulled, set aside or vacated.
4.8 If the Escrow Agent receives any valid court order contrary to the extent that Escrow Agent's gross negligence or willful misconduct was instructions contained in this Agreement, the cause of any direct loss to either Party. Escrow Agent may execute continue to hold the Stock Cancellation Documents until the lawful determination of the issue between the parties hereto.
4.9 If written notice of protest is made by either of the 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 its powers competent 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 perform any 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 its duties 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 directly or through affiliates 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 agentsthe termination or resignation of the Escrow Agent. In the event Escrow Agent receives instructions, claims of termination or demands from any Party hereto which conflict with the provisions resignation 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 Funds nor shall the Escrow Agent have for any duty or obligation reason, the Escrow Agent shall, within that five (5) days’ notice period, deliver the Stock Cancellation Documents to confirm or verify the accuracy or correctness 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 amounts deposited with it hereunder. Anything in 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 contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionAgent.
Appears in 2 contracts
Sources: Escrow Agreement (ALKALINE WATER Co INC), Escrow Agreement (ALKALINE WATER Co INC)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Merger Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. 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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind 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 any of the Funds, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 11 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 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 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. The Escrow Agent shall have no duty to solicit any payments which may be due itit or the Funds, including, without limitation, the Funds Escrow Deposits nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder.
(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 given a direction in writing by the Parties which eliminates such ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final and non-appealable order or judgment of a court of competent jurisdiction. The Parties agree to pursue any redress or recourse in connection with any dispute 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 special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Creative Realities, Inc.), Merger Agreement (Creative Realities, Inc.)
Escrow Agent. (a) The Escrow Agent shall have be obligated only those to perform the duties as are specifically and expressly provided hereinset forth in this Agreement, which shall be deemed purely ministerial in nature, and shall under no circumstances be deemed to be a fiduciary to any party or any other duties person. The parties agree that the Escrow Agent shall not assume any responsibility for the failure of the parties (other than the Escrow Agent) to perform in accordance with this Agreement. This Agreement sets forth all matters pertinent to the escrow contemplated hereunder, and no additional obligations of the Escrow Agent shall be implied. Escrow Agent has no knowledge of, nor any requirement to comply with, inferred from the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with this Agreement or any other agreement. Notwithstanding In no event shall the terms Escrow Agent be liable, directly or indirectly, for any (i) damages or expenses arising out of the services provided hereunder, other than damages which result from the Escrow Agent’s gross negligence or willful misconduct, or (ii) special or consequential damages, even if the Escrow Agent has been advised of the possibility of such damages.
(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 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 Agent receives a Notice of Exclusive Control. The Escrow Agent shall have no responsibility or liability to the Company for complying with a Notice of Exclusive Control or complying with entitlement orders concerning the Escrow Account originated by the Trustee. The Escrow Agent shall have no duty to investigate or make any other determination as to whether the conditions for the issuance of a Notice of Exclusive Control contained in any agreement between the PartiesCompany 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 terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent , in its capacity as such, is not a party to, or bound by, any agreement that may conclusively rely upon any written noticebe required under, documentevidenced by, instruction or request delivered by arise out of the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Indenture.
(d) If the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions from any 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 until it shall be directed otherwise in writing by a joint written instruction of the Company and the Trustee or by order of a court of competent jurisdiction. The Escrow Agent shall be protected in acting upon any notice, request, waiver, consent, receipt or other document reasonably believed by the Escrow Agent to be signed by the proper party or parties and shall not be liable with respect to any 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 securities held in the Escrow Account pursuant to this Agreement. The Escrow Agent shall not incur any liability 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 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 instrument held as in the Escrow Account.
(f) The Escrow Agent may consult legal counsel or other professionals of choice in the event of any dispute or question as to the construction of this Agreement, or the 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 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 damages or interest to the 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 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 more, the Escrow Agent in its discretion may, but shall be under no duty 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 inquire into 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 investigate recourse in connection with such a dispute, without making the validityEscrow Agent a party to same.
(h) The Company agrees to indemnify and hold harmless the Escrow Agent from and against, accuracy any and all loss, liability, cost, damage and expense, including, without limitation, counsel fees, which the Escrow Agent may suffer or content 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 documentlosses, noticeliabilities, instruction costs damages and expenses shall have been finally adjudicated to have resulted from the willful misconduct or requestgross 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 for any action taken, suffered taken or omitted to be taken by it in good faith except 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, in its capacity as such, does 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 extent that Escrow Agent's gross negligence or willful misconduct was parties hereto at least thirty (30) days prior to the cause of any direct loss date specified for such resignation to either Partytake effect. The Escrow Agent may execute 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, all 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, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. If at that time the Escrow Agent has 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 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 powers appointment and perform any 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 duties services hereunder directly or through affiliates or agents. In 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 receives instructionsrenders any material service not contemplated in this Agreement, claims or demands from there is any Party hereto which conflict with assignment of interest in the provisions subject matter of this Agreement, or any material modification hereof, or if any material controversy arises hereunder, or the Escrow Agent receives conflicting instructions from is made a party to any litigation pertaining to this Agreement, or the Partiessubject matter hereof, then the Escrow Agent shall be entitled either to (a) refrain from taking reasonably compensated for such requested services and reimbursed for all costs and expenses, including reasonable attorney’s fees, occasioned by any action until it delay, controversy, litigation or event, and the same shall be given a joint written direction executed by Authorized Representatives of recoverable from the Parties which eliminates such conflict or by a final court order or (b) file an action in interpleaderCompany. Escrow Agent shall have no duty The Company further agrees to solicit any payments which may be due it, including, without limitation, the Funds nor shall 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 any duty or obligation and succeed to confirm or verify the accuracy or correctness rights, powers, duties, immunities and privileges as its predecessor, without the execution of filing of any amounts 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 with it hereunder. Anything in under this Agreement to Agreement, the contrary notwithstandingEscrow Agent is hereby expressly authorized, in no 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 shall that the Escrow Agent obeys or complies with any such writ, order or decree it shall not be liable for special, incidental, punitive, indirect or consequential loss or damage of to any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood parties or to any other person, firm or corporation, b y reason of such loss compliance notwithstanding such writ, order or damage 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. The Escrow Agent shall have only no duties or responsibilities other than those duties as are specifically and expressly provided herein, which set forth in this Escrow Agreement. The Escrow Agent shall be deemed purely ministerial liable as a depository only and shall not be responsible or accountable for the correctness of any information set forth in natureany statements delivered to it including, without limitation, any disbursement notice delivered by the Party A pursuant to Section 5(a) or Section 5(b), shall not be required in any event to verify the correctness of any such statements and no other duties shall not be implied. Escrow Agent has no knowledge of, nor any requirement to comply withresponsible for verifying compliance by the Party A with the requirements of Rule 506 of Regulation D, the terms rules and conditions of regulations thereunder or any other agreement between the Partiessecurities laws, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding rules or regulations, or the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agentsubscription agreement. The Escrow Agent may conclusively rely shall be entitled to rely, without any investigation whatsoever, upon any written noticecommunication received from the Party A, document, instruction and the Escrow Agent shall be entitled to deem the signatories of any subscription agreement or request delivered by the Parties believed by any communication submitted to it hereunder as being those purported to be genuine authorized to sign such communication on behalf of such party and shall be entitled to have been signed by an Authorized Representative(s), as applicable, rely on the genuineness of the signatures of such signatories without inquiry and without requiring substantiating sustaining evidence of any kind and kind. The Escrow Agent shall have the right to consult with counsel and shall be under no duty fully protected and shall not be liable with respect to inquire into any action taken or investigate omitted by the validity, accuracy or content of any such document, notice, instruction or request. Escrow Agent in good faith and on advice of counsel, and shall be fully protected and shall not be liable for any action taken, suffered error of judgments or for any act done or omitted to be taken by it in good faith faith, except to the extent that Escrow Agent's for its own gross negligence or willful misconduct was the cause of any direct loss to either Partymisconduct. The Escrow Agent may execute any of its powers and shall have no duties to anyone except those signing this Escrow Agreement. The Escrow Agent shall have the right to perform any of its duties hereunder directly through agents, attorneys, custodians or through affiliates or agentsnominees. In addition:
(a) if any property held under this Escrow Agreement is attached, garnished, or levied upon by any court order, or the event 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 Agent receives instructions, claims or demands from any Party hereto which conflict with the provisions of this Agreement, or if any part thereof, the Escrow Agent receives conflicting instructions from 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 Parties, 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 either to (a) refrain reimbursement from taking any action until it shall be given a joint written direction executed 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 Authorized Representatives the Party A, out of the Parties property deposited hereunder; and
(c) any corporation or association into 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 Funds nor shall the Escrow Agent have may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business and assets as a whole or substantially as a whole, or any duty corporation or obligation association resulting from any such conversion, sale, merger, consolidation or transfer to confirm 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 verify trust estate and all of the accuracy trusts, powers, immunities, privileges, protections and all other matters as was its predecessor, without the execution or correctness filing of any amounts deposited with it hereunder. Anything in this Agreement instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding, in no event shall ; provided that the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited shall give notice to lost profits), even if Escrow Agent has been advised of the likelihood Party A of such loss or damage and regardless of the form of actionchange in Escrow Agent.
Appears in 2 contracts
Sources: Escrow Agreement (UBS Managed Futures LLC (Aspect Series)), Escrow Agreement (UBS Managed Futures LLC (Aspect Series))
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement 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 or nor shall the Escrow Agent be required to determine if any Party Person has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement.
(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 shall control the actions of Escrow Agent. control.
(c) The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, ▇▇▇▇▇ and the SPAC Representative jointly without inquiry and without requiring substantiating evidence of any kind 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 Escrow Shares, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 9 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 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 ’s gross negligence or willful misconduct was the primary cause of any direct loss to either PartyPubco, the SPAC Representative or the Company Shareholders. 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 Pubco, the SPAC Representative or the Company Shareholders. In the event that the Escrow Agent receives 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 Pubco and the SPAC Representative jointly, which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either to (a) refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or uncertainty to the satisfaction of the Escrow Agent or by a final court and non-appealable order or (b) file an action judgement of a court of competent jurisdiction Pubco and the SPAC Representative agree to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making 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 a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
Appears in 2 contracts
Sources: Share Escrow Agreement (PS International Group Ltd.), Share Escrow Agreement (AIB Acquisition Corp)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement between agreement, instrument or document between_______________________ and any other person or entity, in connection herewith, if any, including without limitation the Parties, Underlying Agreement or nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement.
(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 shall control the actions of Escrow Agent. control.
(c) The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the__________________ without inquiry and without requiring substantiating evidence of any kind 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 Escrow Shares, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 9 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 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 direct loss to either Partyeither______________ 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.
(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 receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either to (a) refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or uncertainty to the satisfaction of the Escrow Agent or by a final court and non-appealable order or (b) file an action judgement of a court of competent jurisdiction_____________ agrees to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making 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 a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
Appears in 2 contracts
Sources: Merger Agreement (DFP Healthcare Acquisitions Corp.), Stockholder Support Agreement (DFP Healthcare Acquisitions Corp.)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Partiesparties and any other person or entity, in connection herewith, including the Merger Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement
(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 shall control the actions of Escrow Agent. control.
(c) The Escrow Agent may conclusively rely upon upon, and shall not be liable for acting or refraining from acting upon, any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, any of the parties without inquiry and without requiring substantiating evidence of any kind 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 Escrow Shares, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 9 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 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 direct loss to either Partyany 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 Shares. In the event that the Escrow Agent receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either to (a) refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or by uncertainty to the satisfaction of the Escrow Agent, until an Order or judgement of a final court order of competent jurisdiction agrees to pursue any redress or (b) file an action recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making 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 a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
Appears in 2 contracts
Sources: Merger Agreement (Abri SPAC I, Inc.), Indemnification Escrow Agreement (Abri SPAC I, Inc.)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement between agreement, instrument or document betweenand any other person or entity, in connection herewith, if any, including without limitation the Parties, Underlying Agreement or nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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.
(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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the without inquiry and without requiring substantiating evidence of any kind 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 Escrow Asset, 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 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 ’s gross negligence or willful misconduct was the primary cause of any direct loss to either PartyParent 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 or the beneficiary. In the event that the Escrow Agent receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or uncertainty to the satisfaction of the Escrow Agent or by a final court and non- appealable order or (b) file an action judgment of a court of competent jurisdiction agrees to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making 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 a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
Appears in 2 contracts
Sources: Escrow Agreement (Logiq, Inc.), Escrow Agreement (Collective Audience, Inc.)
Escrow Agent. The acceptance by the Escrow Agent of his duties hereunder is subject to the following terms and conditions, which the parties to this Agreement hereby agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent:
3.1 The Escrow Agent shall have only those duties as are specifically and expressly provided hereinnot be responsible or liable in any manner whatever for the sufficiency, which correctness, genuineness or validity of any cash, investments or other amounts deposited with or held by it.
3.2 The Escrow Agent shall be deemed purely ministerial protected in nature, and no other duties shall be implied. Escrow Agent has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely acting upon any written notice, documentcertificate, instruction instruction, request or request delivered by the Parties other paper or document believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into the proper party or investigate the validity, accuracy or content of any such document, notice, instruction or request. parties.
3.3 The Escrow Agent shall not be liable for any action takenact done hereunder except in the case of its gross negligence, 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 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, bad faith.
3.4 The Escrow Agent shall not be entitled either obligated or permitted to (a) refrain from taking investigate the correctness or accuracy of any action until it shall be given a joint written direction executed by Authorized Representatives of document or to determine whether or not the Parties which eliminates signatures contained in said documents are genuine or to require documentation or evidence substantiating any such conflict document or by a final court order or (b) file an action in interpleader. signature.
3.5 The Escrow Agent shall have no duty to solicit duties as Escrow Agent except those which are expressly set forth herein, and in any payments which may 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. The Escrow Agent shall not be due itprohibited from owning an equitable interest in the Company, including, without limitation, any of its subsidiaries or any third party that is in any way affiliated with or conducts business with the Funds nor shall Company.
3.6 The Company and the Buyer specifically acknowledge that the Escrow Agent have is an officer and shareholder in the Global Funding Group, a North Carolina investment banking firm under contract with the Company with respect to the transactions contemplated herein and in the Securities Purchase Agreement, and which has worked with affiliates of the Buyer (along with the Escrow Agent) on other unrelated transactions, and that they and each of them has specifically requested that the Escrow Agent draft the documentation for the said transactions and act as 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 Securities Purchase Agreement, and is satisfied in its sole discretion with the form and content of the documentation drafted by the Escrow Agent. The said parties hereby waive any duty objection to the Escrow Agent so acting based upon conflict of interest or obligation lack of impartiality. The Escrow Agent agrees to confirm or verify act impartially and in accordance with the accuracy or correctness terms of any amounts deposited with it hereunder. Anything in this Agreement to and with the contrary notwithstandingparties' respective instructions, so long as they are not in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage conflict with the terms of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionthis Agreement.
Appears in 2 contracts
Sources: Escrow Agreement (Intercell Corp), Escrow Agreement (Intercell Corp)
Escrow Agent. The Escrow Agent shall have undertakes to perform only those such duties as are specifically and expressly provided set forth herein, which shall be deemed purely ministerial in nature, and no other duties duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Merger Agreement, nor shall the Escrow Agent be required to determine if any Party Person has complied with any other agreementsuch 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 shall will control the actions of the Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction Joint Release Instruction or request delivered by the Parties Final 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 Representative(s)authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, as applicable, without inquiry the Parties shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A-1 and without requiring substantiating evidence of any kind 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 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 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 or Final Determination or (b) interplead all of the assets held hereunder into, or may seek other judicial relief or orders from, a court of competent jurisdiction, and the Escrow Agent shall act in accordance with any such judicial relief or court 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 ’s fraud, gross negligence or willful misconduct was the direct 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 To the event Escrow Agent receives instructionsextent practicable, 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 agree to pursue commercially reasonable redress or by a final court order or (b) file an action recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. 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 liable, for any special, incidentalindirect, punitive, indirect incidental or consequential loss losses or damage 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 loss losses or damage 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 shall will have only no duties or responsibilities except those expressly set forth herein. Except for this Escrow Agreement, the Escrow Agent is not a party to, or bound by, any agreement that may be required under, evidenced by, or arise out of the Purchase Agreement.
(b) If the Escrow Agent will be uncertain as to its duties as or rights hereunder or will receive instructions from any of the undersigned with respect to the Escrow Shares, that, in its opinion, are specifically in conflict with any of the provisions of this Escrow Agreement, it will be entitled to refrain from taking any action until it will be directed otherwise in writing jointly by the Company, Founder and expressly provided hereinthe Purchasers or by a final nonappealable order of a court of competent 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, which shall be deemed purely ministerial or for anything that it may do or refrain from doing in natureconnection herewith, except its own bad faith, gross negligence or willful misconduct, and no other duties shall be implied. the Escrow Agent has will have no knowledge ofduties to anyone except the Company, nor any requirement to comply with, Founder and the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or requestPurchasers. Escrow Agent shall not be liable for any action taken, suffered taken or omitted to be taken by it or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in good faith except to the extent that Escrow Agent's absence of bad faith, gross negligence or willful misconduct was the cause of any direct loss to either Party. Escrow Agent may execute any of on its powers and perform any of its duties hereunder directly or through affiliates or agentspart. In the event 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 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. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable (i) for specialacting in accordance with or relying upon any instruction, incidentalnotice, punitivedemand, indirect certificate or consequential loss document provided to the Escrow Agent in accordance with the terms of this Agreement, (ii) for any consequential, punitive or damage 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 legal counsel in the event of any kind whatsoever dispute or question as to the construction of this Escrow Agreement, or the Escrow Agent’s duties hereunder, and the Escrow Agent will incur no liability and will be fully protected with respect to any action taken or omitted in good faith in accordance with the opinion and instructions of such counsel.
(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 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 failure or refusal to comply with such conflicting or adverse demands. The Escrow Agent will be entitled to continue so to refrain and refuse so to act until all differences with respect thereto will have been resolved by agreement of 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 sixty (60) days or more, the Escrow Agent in its discretion may file a suit in interpleader for the purpose of having the respective rights of the claimants adjudicated, if the Escrow Agent determines such action to be appropriate under the circumstances, and may deposit with the court all documents and property held hereunder. 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 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 Escrow Agent, its agents, nominees, partners, employees, officers and directors from all claims, losses, liabilities, costs, damages or expenses (including reasonable attorneys’ fees and expenses) (collectively, “Losses”) arising from or in connection with or related to this Escrow Agreement or being Escrow Agent 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 loss or damage 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 shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. Under no circumstance will the Escrow Agent has no 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 requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the PartiesEscrow Parties and any other person or entity, nor shall in connection herewith, if any, including without limitation the Three Party Agreement or the Merger Agreement, 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 Party person or entity has complied with any other agreement. Notwithstanding 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.
(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 shall control the actions of Escrow Agent. control.
(c) The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the Escrow Parties without inquiry and without requiring substantiating evidence of any kind 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 Shares, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section X hereof and the Escrow Agent 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 ’s gross negligence or willful misconduct was the primary cause of any direct loss to either Partythe Escrow Parties or the Pre-Merger Mesa Shareholders. 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 the Escrow Parties or the Pre-Merger Mesa Shareholders. In the event that the Escrow Agent receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or uncertainty to the satisfaction of the Escrow Agent or by a final court and non-appealable order or judgment of a court of competent jurisdiction that agrees to pursue any redress or recourse in connection with any dispute without making the Escrow Agent a party to the same.
(bf) file an action in interpleader. The Escrow Agent shall have no duty to solicit not be responsible or liable for any payments which may be due itfailure or delay in the performance of its obligation under this Escrow Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, the Funds nor shall 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 have any duty or obligation shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to confirm or verify resume performance as soon as reasonably practicable under the accuracy or correctness circumstances.
(g) No provision of any amounts deposited with it hereunder. Anything in this Escrow Agreement to shall require the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect to risk or consequential loss advance its own funds or damage otherwise incur any financial liability or potential financial liability in the performance of any kind whatsoever (including but not limited to lost profits), even if its duties or the exercise of its rights under this Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionAgreement.
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 shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Generator Interconnection Study Process Agreement (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. 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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s)the proper Party or Parties, as applicable, without and Escrow Agent shall have no duty of inquiry and without requiring no obligation to require substantiating evidence of any kind and kind. The Escrow Agent shall be under have no duty to inquire into solicit any payments which may be due it or investigate the validityFund, including, without limitation, the Escrow Deposit, nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or content correctness of any such document, notice, instruction or request. 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 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 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 receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed in writing by Authorized Representatives of the Parties which eliminates such conflict ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final court and non-appealable order or (b) file an action judgment of a court of competent jurisdiction. The Parties agree to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 2 contracts
Sources: Escrow Agreement, Escrow Agreement
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the First Lien Credit Agreement and the Second Lien Credit Agreement (collectively, the “Underlying Agreements”), nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding Underlying Agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of any Underlying Agreements, even though reference thereto may be made in this Agreement. 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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind 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 Fund, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 11 below and the Escrow Agent 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 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 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 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 receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed in writing by Authorized Representatives of the Parties which eliminates such conflict ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final court and non-appealable order or (b) file an action judgment of a court of competent jurisdiction. The Parties agree to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Lifetime Brands, Inc), Credit Agreement (Lifetime Brands, Inc)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Stock Purchase Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. 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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind kind. Concurrent with the execution of this Agreement, the 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, 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 Deposit.
(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 ’s gross negligence or willful misconduct was the primary cause of any direct loss to either any Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates attorneys, and shall be liable only for its gross negligence or agentswillful 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 receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed in writing by Authorized Representatives of the Parties Buyer and the Representative which eliminates such conflict ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final court and non-appealable order or (b) file an action judgment of a court of competent jurisdiction. Except in interpleader. the event of willful misconduct or gross negligence of the Escrow Agent shall have no duty to solicit any payments which may be due it, including, without limitationAgent, the Funds nor shall Parties agree to pursue any redress or recourse in connection with any dispute without making 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 a party to the contrary notwithstandingsame. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, in no event shall Escrow Agent be liable for specialIN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR SPECIAL, incidentalINCIDENTAL, punitivePUNITIVE, indirect or consequential loss or damage 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 Escrow Agent has been advised of the likelihood of such loss or damage 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. The acceptance by the Escrow Agent of his duties hereunder is subject to the following terms and conditions, which the parties to this Agreement hereby agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent:
3.1 The Escrow Agent shall have only those duties as are specifically and expressly provided hereinnot be responsible or liable in any manner whatever for the sufficiency, which correctness, genuineness or validity of any cash, Shares, certificates, investments or other amounts deposited with or held by it.
3.2 The Escrow Agent shall be deemed purely ministerial protected in nature, and no other duties shall be implied. Escrow Agent has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely acting upon any written notice, documentcertificate, instruction instruction, request or request delivered by the Parties other paper or document believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into the proper party or investigate the validity, accuracy or content of any such document, notice, instruction or request. parties.
3.3 The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it act done hereunder except in good faith except to the extent that Escrow Agent's gross negligence case of its reckless 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 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, actions taken in bad faith.
3.4 The Escrow Agent shall not be entitled either obligated or permitted to (a) refrain from taking investigate the correctness or accuracy of any action until it shall be given a joint written direction executed by Authorized Representatives of document or to determine whether or not the Parties which eliminates signatures contained in said documents are genuine or to require documentation or evidence substantiating any such conflict document or by a final court order or (b) file an action in interpleader. signature.
3.5 The Escrow Agent shall have no duty to solicit duties as Escrow Agent except those which are expressly set forth herein, and in any payments which may 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. The Escrow Agent shall not be due it, including, without limitationprohibited from owning an equity interest in the Company, the Funds nor shall 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 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 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 may purchase an equity interest in the Company and/or may become an equity owner of the Holder or another Holder, and may increase or sell any duty such interest, 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 obligation lack of impartiality. The Escrow Agent agrees to confirm or verify act impartially and in accordance with the accuracy or correctness terms of any amounts deposited with it hereunder. Anything in this Agreement to and with the contrary notwithstandingparties' respective instructions, so long as they are not in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage conflict with the terms of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionthis Agreement.
Appears in 2 contracts
Sources: Stock Escrow and Security Agreement (Kanakaris Wireless), Stock Escrow and Security Agreement (Kanakaris Communications Inc)
Escrow Agent. Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. Escrow Agent has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and The Escrow Agent shall be responsible only for the performance of the duties and obligations expressly imposed upon it under no duty this Agreement. Without prejudice to inquire into the generality of the foregoing sentence, the Parties confirm and agree that the Escrow Agent is not a party to the Management Indemnity Agreement, the SPA or investigate any other transaction document and, therefore, the validity, accuracy or content Escrow Agent is neither entitled nor obliged to review and verify compliance of any such Instruction under this Agreement with any transaction document, notice, instruction or request. The Escrow Agent shall not be liable obliged to verify the correctness of any calculations 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 Sellers' Claims Representative agrees to indemnify and hold the Escrow Agent 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 action takenlost profit, suffered that the Escrow Agent may suffer or omitted to be taken by it incur in good faith 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 the extent that any such loss, liability, damage or expense arises from a breach of the Escrow Agent's ’s obligations hereunder or the Escrow Agent’s gross negligence or willful misconduct was 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 cause 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 direct loss document purporting to either Partybe such notice, instruction or other document. 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 receives instructions, claims or demands from any Party hereto which conflict with the provisions of Notwithstanding anything in 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 verify that the documents on the basis of which it shall distribute any funds from the Escrow Account appear to be given a joint written direction executed by Authorized Representatives 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 Parties which eliminates form of execution of such conflict notice or by a final court order other document, or (b) file an action in interpleaderfor the identity or authority or right of any person or party executing or giving it. The Escrow Agent shall have no duty obligation to solicit any payments which may be due itverify 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, including, without limitation, 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 Funds nor shall rights and obligations of the Escrow Agent have any duty or obligation under this Agreement. For the avoidance of doubts, the Parties agree and state that the delivery of termination written notice by the Escrow Agent to confirm or verify the accuracy or correctness Sellers’ Claims Representative shall be sufficient vis-à-vis the Sellers for the termination of any amounts deposited with it hereunder. Anything in this Agreement by the Escrow Agent pursuant to the contrary notwithstandingprevious sentence and, in no event therefore, delivery of the termination written notice to all Sellers shall not be required for such a termination by the Escrow Agent. The Escrow Agent shall procure that during the term of this Agreement no other funds are deposited on the Escrow Account – any such received funds are to be liable for specialreturned to the account from which they were transferred. The Parties acknowledge that information regarding this Agreement will be registered in the Electronic Registry of Escrows, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of maintained by the likelihood of such loss or damage and regardless of the form of actionCzech Bar Association.
Appears in 2 contracts
Sources: Indemnification Agreement, Indemnification Agreement
Escrow Agent. Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties duties, including but not limited to any fiduciary duty, shall be implied. Notwithstanding anything to the contrary, Escrow Agent has no knowledge of, nor any requirement obligation to comply with, the terms and conditions of any other agreement between agreement, Escrow Agent shall not be responsible for determining the Partiesmeaning of any capitalized term not entirely defined herein, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Partiesagreement, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. Escrow Agent shall Any notice, document, instruction or request delivered by a Party but not contemplated under this Agreement may be liable for any action taken, suffered or omitted to be taken disregarded 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 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 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 final 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 itit or the Accounts, including, without limitation, the Funds Escrow Amount 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 The Parties grant to the contrary notwithstanding, in no event shall Escrow Agent be liable a lien and security interest in the Escrow Amount in order to secure any indemnification obligations of the Parties or obligation for specialfees or expenses owed to Escrow Agent hereunder. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, incidentalIN NO EVENT SHALL ESCROW AGENT BE LIABLE FOR SPECIAL, punitiveINCIDENTAL, indirect or consequential loss or damage of any kind whatsoever PUNITIVE, 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 Escrow Agent has been advised of the likelihood of such loss or damage 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. (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 shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement 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 Merger Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. 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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been jointly signed or presented by an Authorized Representative(s)▇▇▇▇▇ ▇▇▇▇▇▇, as applicable, Spinco and the Voyager Stockholders’ Representative without inquiry and without requiring substantiating evidence of any kind 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 Escrowed Shares, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 12 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 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. 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 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. The Escrow Agent shall have no duty to solicit any payments which may be due it, including, without limitation, to it or the Funds Escrowed Shares nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall .
(c) The Escrow Agent shall not be liable for specialany action taken, incidentalsuffered 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, punitive, indirect willful misconduct or consequential loss or damage fraud was the primary cause of any kind whatsoever (including but not limited loss to lost profits)any party hereto, even if any other beneficiary of this Agreement or any of their respective representatives. The Escrow Agent has been advised 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 ▇▇▇▇▇ ▇▇▇▇▇▇, Spinco and the Voyager Stockholders’ Representative which, in its opinion, conflict with any of the likelihood 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 given a direction in writing which eliminates such loss ambiguity or damage and regardless uncertainty to the satisfaction of the form Escrow Agent or by a final and non-appealable order or judgment of actiona court of competent jurisdiction and each of ▇▇▇▇▇ ▇▇▇▇▇▇, Spinco and the Voyager Stockholders’ Representative agree to pursue any redress or recourse in connection with any dispute without making the Escrow Agent a party to the same.
Appears in 2 contracts
Sources: Escrow Agreement (Covetrus, Inc.), Escrow Agreement (HS Spinco, Inc.)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Partiesparties and any other person or entity, in connection herewith, including the Merger Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement.
(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 shall control the actions of Escrow Agent. control.
(c) The Escrow Agent may conclusively rely upon upon, and shall not be liable for acting or refraining from acting upon, any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, any of the parties without inquiry and without requiring substantiating evidence of any kind 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 Escrow Shares, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 9 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 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 ’s fraud, gross negligence or willful misconduct was the primary cause of any direct loss to either Partyany 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 Shares. In the event that the Escrow Agent receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either to (a) refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or by uncertainty to the satisfaction of the Escrow Agent, until an Order or judgement of a final court order of competent jurisdiction agrees to pursue any redress or (b) file an action recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making 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 a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
Appears in 2 contracts
Sources: Merger Agreement (Abri SPAC I, Inc.), Earnout Escrow Agreement (Abri SPAC I, Inc.)
Escrow Agent. Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties duties, including but not limited to any fiduciary duty, shall be implied. Notwithstanding anything to the contrary, Escrow Agent has no knowledge of, nor any requirement obligation to comply with, the terms and conditions of any other agreement between agreement, Escrow Agent shall not be responsible for determining the Partiesmeaning of any capitalized term not entirely defined herein, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Partiesagreement, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. 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 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 final 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 itit or the Fund, including, without limitation, the Funds 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. The Parties grant to Escrow Agent a lien and security interest in the Fund in order to secure any indemnification obligations of the Parties or obligation for fees or expenses owed to Escrow Agent hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 2 contracts
Sources: Consent and Limited Waiver Agreement (Aytu Bioscience, Inc), Consent and Limited Waiver Agreement (Aytu Bioscience, Inc)
Escrow Agent. The Escrow Agent shall have undertakes to perform only those such duties as are specifically and expressly provided set forth herein, which shall be deemed purely ministerial in nature, and no other duties duties, including but not limited to any fiduciary duties, shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Purchase Agreement, nor shall the Escrow Agent be required to determine if any Party Person has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of any other agreement between the Partiessuch agreements, the terms and conditions of even though reference thereto may be made in this Agreement shall control the actions of Escrow AgentAgreement. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction Joint Release Instruction or request delivered by the Parties Final Determination furnished to it hereunder and believed by it to be genuine and to have been signed and presented by an Authorized Representative(s)the proper Party or Parties. Concurrent with the execution of this Agreement, as applicable, without inquiry the Parties shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A-1 and without requiring substantiating evidence of any kind 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. 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 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. The Escrow Agent shall have no duty to solicit any payments which may be due it, including, without limitation, it or the Funds nor shall Escrow Funds. In the event that the Escrow Agent have shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any duty 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 or Final Determination. 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 confirm such interpleaded assets or verify any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the accuracy or correctness event of any amounts deposited dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent shall have no liability or obligation with it hereunderrespect to the Escrow Funds except for the Escrow Agent’s fraud, willful misconduct or gross negligence. 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, incidentalindirect, punitive, indirect incidental or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 2 contracts
Sources: Escrow Agreement (Quaker Chemical Corp), Escrow Agreement (Gulf Hungary Holding Korlatolt Felelossegu Tarsasag)
Escrow Agent. The Escrow Agent shall have undertakes to perform only those such duties as are specifically expressly set forth in this Section 2.21 and expressly provided hereinin the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has no occurred and is continuing. The Escrow Agent shall not 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 requirement requirements to comply comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the PartiesAleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Party Person has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of any other agreement between such agreements, except to the Parties, extent such provisions are repeated in this Section 2.21 or in the terms and conditions of this Agreement shall control the actions of Escrow AgentAleris Increase Joinder Amendment. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties 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 Representative(s)the Designated Company. On the Aleris Increase Joinder Effective Date, as applicable, without inquiry and without requiring substantiating evidence the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of any kind and 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. 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 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. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due itto it or in respect of the Escrowed Term Loans, includinginterest, without limitation, or any applicable fees (including arranger and commitment fees). In the Funds nor shall event that the Escrow Agent have shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any duty Person which, in its opinion, conflict with any of the provisions of this Section 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 the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the 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 confirm such interpleaded assets or verify any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the accuracy or correctness event of any amounts deposited 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 hereunder or thereunder. The Escrow Agent shall have no liability or obligation with it hereunderrespect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. 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 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, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. 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. The Escrow Agent's responsibility and liability under this Agreement shall be limited as follows:
(i) the Escrow Agent does not represent, warrant or guaranty to the holders of the Notes from time to time the performance of the Company or the Trustee; (ii) the Escrow Agent shall have only those duties no responsibility to the Company or the holders of the Notes or the Trustee from time to time as are specifically 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 for all aspects of the Company's business and expressly provided hereinconduct; and (iv) the Escrow Agent is not obligated to supervise, which inspect or inform the Company or any third party of any matter referred to above. No implied covenants or obligations shall be deemed purely ministerial in nature, and no other duties shall be implied. inferred from this Agreement against the Escrow Agent has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the PartiesAgent, 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 Party has complied with any other agreement. Notwithstanding the terms authenticity or the correctness of any other agreement between fact stated therein or the Parties, propriety or validity of service thereof. The Escrow Agent may act in reliance upon any instrument comporting with the terms and conditions provisions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties 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 by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and duly authorized to do so. The Escrow Agent shall be under no duty may act pursuant to inquire into or investigate the validity, accuracy or content written advice of counsel chosen by it with respect to any such document, notice, instruction or request. Escrow Agent matter relating to this Agreement and (subject to SECTION 4(a)(ii)) shall not be liable for any action taken, suffered taken 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 Partyaccordance with such advice. The Escrow Agent may execute shall not be called upon to advise any of its powers and perform party as to selling to retaining, or taking or refraining from taking any of its duties hereunder directly action with respect to, any securities or through affiliates or agentsother property deposited hereunder. In the event Escrow Agent receives instructions, claims or demands from of any Party hereto which conflict with ambiguity in the provisions of this AgreementAgreement with respect to any funds or property deposited hereunder, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent shall be entitled either to (a) refrain from taking refuse to comply with any action until it and all claims, demands or instructions with respect to such funds or property, and the Escrow Agent shall not be or become liable for its failure or refusal to comply with conflicting claims, demands or instructions. The Escrow Agent shall be given a joint written direction executed by Authorized Representatives of the Parties which eliminates such conflict entitled to refuse to act until either any conflicting or adverse claims or demands shall have been finally determined by a final court order of competent jurisdiction or (b) file an action settled by agreement between the conflicting claimants as evidenced in interpleader. a writing, satisfactory to the Escrow Agent, or the Escrow Agent shall have no duty received security or an indemnity satisfactory to solicit any payments which may be due it, including, without limitation, the Funds nor shall the Escrow Agent have sufficient to save the Escrow Agent harmless from and against any duty and all loss, liability or obligation expense which the Escrow Agent may incur by reason of its acting. The Escrow Agent may in addition elect in its sole option to confirm commence an interpleader action or verify seek other judicial relief or orders as the accuracy Escrow Agent may deem necessary. No provision of this Agreement shall require the Escrow Agent to expend or correctness risk its own funds or otherwise incur any financial liability in the performance of any amounts deposited with it of its duties hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 2 contracts
Sources: Interest Escrow Agreement (Echostar DBS Corp), Indenture (Echostar DBS Corp)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Partiesparties and any other person or entity, in connection herewith, including the Merger Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement.
(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 shall control the actions of Escrow Agent. control.
(c) The Escrow Agent may conclusively rely upon upon, and shall not be liable for acting or refraining from acting upon, any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, any of the parties without inquiry and without requiring substantiating evidence of any kind 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 Escrow Shares, 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. 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 ’s fraud, gross negligence or willful misconduct was the primary cause of any direct loss to either Partyany 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 Shares. In the event that the Escrow Agent receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either to (a) refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or by uncertainty to the satisfaction of the Escrow Agent, until an Order or judgement of a final court order of competent jurisdiction agrees to pursue any redress or (b) file an action recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making 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 a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
Appears in 2 contracts
Sources: Earnout Escrow Agreement (SRIVARU Holding LTD), Earnout Escrow Agreement (SRIVARU Holding LTD)
Escrow Agent. The Escrow Agent shall have undertakes to perform only those such duties as are specifically and expressly provided set forth herein, which shall be deemed purely ministerial in nature, and no other duties duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Merger Agreement, nor shall the Escrow Agent be required to determine if any Party Person has complied with any other agreementsuch 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 shall will control the actions of the Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction Joint Release Instruction or request delivered by the Parties Final 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 Representative(s)authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, as applicable, without inquiry the Parties shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A-1 and without requiring substantiating evidence of any kind 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 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 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 or Final Determination or (b) interplead all of the assets held hereunder into, or may seek other judicial relief or orders from, a court of competent jurisdiction, and the Escrow Agent shall act in accordance with any such judicial relief or court 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 ’s fraud, gross negligence or willful misconduct was the direct 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 To the event Escrow Agent receives instructionsextent practicable, 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 agree to pursue commercially reasonable redress or by a final court order or (b) file an action recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. 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 liable, for any special, incidentalindirect, punitive, indirect incidental or consequential loss losses or damage 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 loss losses or damage 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. 5.1. The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the 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 Party person or entity has complied with any other agreement. Notwithstanding 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. 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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind and 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 Agent 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 ’s gross negligence or willful misconduct was the primary cause of any direct loss to either any Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates attorneys and shall be liable only for its gross negligence or agentswillful 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 receives 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 which, in its opinion, conflict with any of the provisions of this Escrow Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed in writing by Authorized Representatives of the Parties Issuer and Canaccord which eliminates such conflict ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final court and non-appealable order or (b) file an action judgment of a court of competent jurisdiction. The Parties agree to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. 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 Canadian 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 shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Purchase Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. Solely with respect to the duties of the Escrow Agent, 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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind and 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 Account, including, without limitation, the Escrow Deposit nor, except as expressly set forth herein, 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 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 attorneys, and shall be liable only for its gross negligence, or agentswillful 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 so long as such persons were selected with reasonable care. In the event that the Escrow Agent receives shall be uncertain or believe there is some ambiguity as to an investment instruction hereunder or shall receive instructions, claims or demands from any Party party hereto which regarding the investment of the Escrowed Funds which, in its opinion, conflict with any of the provisions of this Escrow Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed in writing by Authorized Representatives of the Parties which eliminates such conflict ambiguity or uncertainty as to investment of the Escrowed Funds to the satisfaction of Escrow Agent or by a final court and non-appealable order or (b) file an action judgment of a court of competent jurisdiction. The Parties agree, to the extent reasonably practicable, to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent represents and warrants to the Parties that the Escrow Agent is a “bank” as defined in Paragraph (A) of Section 3(a)(6) of the Securities Exchange Act of 1934, as amended. The deposit accounts of each Approved Bank is insured by the FDIC to the maximum amount permitted by law.
(b) All funds received from Investors by the Company or the Placement Agent in payment for the Shares (“Investor Funds”) will be delivered to the Escrow Agent by noon Eastern Time on the next business day following the day upon which such Investor Funds are received by the Company or the Placement Agent, and shall, upon receipt of good and collected funds by the Escrow Agent, be retained in the Escrow Account by the Escrow Agent and invested as provided in Section 3(a) hereof. During the term of this Escrow Agreement, the Company and the Placement Agent shall instruct Investors to make all checks payable to the order of “Computershare Trust Company, ▇.▇.▇▇ Escrow Agent for Amalgamated Specialty Group Holdings, Inc.” and shall cause all checks received by each of them in payment for the Shares to be endorsed in favor of the Escrow Agent and delivered to the Escrow Agent for deposit in the Escrow Account. Investor Funds also may be wired directly to the Escrow Account using wire instructions provided by the Escrow Agent.
(c) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the PartiesCompany, the Placement Agent and the Investors, in connection herewith, if any, including without limitation the Subscription Agreements, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. In the event of any conflict between the terms and provisions of this Agreement, those of the Subscription Agreements, any schedule or exhibit attached to this Agreement, or any other agreement between among the PartiesCompany, the Placement Agent and the Investors, the terms and conditions of this Agreement shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind 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 Fund, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 11 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 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 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. The Escrow Agent shall have no duty to solicit any payments which may be due itit or the Fund, including, without limitation, the Funds 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.
(d) 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 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 given a direction in writing by the Parties which eliminates such ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final and non-appealable order or judgment of a court of competent jurisdiction. The Parties agree to pursue any redress or recourse in connection with any dispute 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 special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Sources: Escrow Agreement (Forge Group, Inc.)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of the Underlying Agreement or any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding Underlying Agreement, nor shall any additional obligations of the Escrow Agent be inferred from the terms of any Underlying Agreement, even though reference thereto may be made in this Agreement. 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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind 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 Fund, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 11 below and the Escrow Agent 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 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 in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's ’s 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 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 receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed in writing by Authorized Representatives of the Parties which eliminates such conflict ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final court and non-appealable order or (b) file an action judgment of a court of competent jurisdiction. The Parties agree to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Sources: International Daywork Drilling Contract (Cobalt International Energy, Inc.)
Escrow Agent. The Escrow Agent shall have undertakes to perform only those such duties as are specifically and expressly provided set forth herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Investor Rights Agreement, nor shall the Escrow Agent be required to determine if any Party Person has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of any other agreement between the Partiessuch agreements, the terms and conditions of even though reference thereto may be made in this Agreement shall control the actions of Escrow AgentAgreement. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties Joint Release Instruction furnished to it hereunder and believed by it to be genuine and to have been signed and presented by an Authorized Representative(s)the proper Party or Parties, as applicableexcept in the event of Escrow Agent’s fraud, without inquiry gross negligence or willful misconduct. 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 without requiring substantiating evidence of any kind 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. 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 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. The Escrow Agent shall have no duty to solicit any payments which may be due it, including, without limitation, it or the Funds nor shall Escrowed Property. In the event that the Escrow Agent have shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any duty 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 Final Determination. The Escrow Agent 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 confirm such interpleaded assets or verify 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 accuracy or correctness event of any amounts deposited dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent shall have no liability or obligation for any action taken in good faith with it hereunderrespect to the Escrowed Property except for the Escrow Agent’s fraud, willful misconduct or gross negligence. 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, directly or indirectly, for any special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. The Escrow Agent shall have undertakes to perform only those such duties as are specifically and expressly provided set forth herein, which shall be deemed purely ministerial in nature, and no other duties duties, including but not limited to any fiduciary duties, shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Merger Agreement, nor shall the Escrow Agent be required to determine if any Party Person has complied with any other agreementsuch 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 shall will control the actions of Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction Joint Release Instruction or request delivered by the Parties Final Determination furnished to it hereunder and believed by it to be genuine and to have been signed and presented by an Authorized Representative(s)authorized representative of the proper Party or Parties set forth in Exhibit A-1 and Exhibit A-2. Concurrent with the execution of this Agreement, as applicable, without inquiry the Parties shall deliver to the Escrow Agent authorized representative’s forms in the form of Exhibit A-1 and without requiring substantiating evidence of any kind 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 or Final Determination. 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 ’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 To the event Escrow Agent receives instructionsextent practicable, 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 agree to pursue any redress or by a final court order or (b) file an action recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, incidentalindirect, punitive, indirect incidental or consequential loss losses or damage 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 loss losses or damage damages and regardless of the form of action.
Appears in 1 contract
Sources: Escrow Agreement (Thestreet, Inc.)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between Sponsor or IMC Parent and any other person or entity, in connection herewith, if any, including without limitation the PartiesBusiness Combination Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. 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 the PartiesSponsor or IMC Parent and any other person or entity, the terms and conditions of this Agreement shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the applicable person without inquiry and without requiring substantiating evidence of any kind 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 Escrow Property, 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 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 Property 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 ’s fraud, gross negligence or willful misconduct was the cause of any direct loss to either Partyloss. 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 cause of any loss. In the event that the Escrow Agent receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or uncertainty to the satisfaction of the Escrow Agent or by a final court and non-appealable 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 Funds nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness judgment of any amounts deposited with it hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage a court of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actioncompetent jurisdiction.
Appears in 1 contract
Sources: Escrow Agreement (Deerfield Healthcare Technology Acquisitions Corp.)
Escrow Agent. The Escrow Agent shall have undertakes to perform only those such duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, set forth herein and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation, the Purchase Agreement (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any Party Person has complied with any other such agreement. Notwithstanding , nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreement, even though reference thereto may be made in this Escrow Agreement. In the event of any conflict between the terms and provisions of this Escrow Agreement, 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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction instruction, request or request delivered by other instrument furnished to it hereunder, not only as to its due execution, validity and effectiveness, but also as to the Parties believed by it truth and accuracy of any information contained therein, which the Escrow Agent reasonably believes to be genuine and to have been signed or presented by an Authorized Representative(s), as applicablethe proper party or parties, without inquiry and without requiring substantiating evidence of any kind 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 Escrow Fund, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 14 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 15. 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 action taken, suffered party of their respective obligations under the Underlying Agreement nor shall Escrow Agent be responsible or omitted to be taken by it liable in good faith except to any manner for the extent that Escrow Agent's gross negligence or willful misconduct was the cause failure of any direct loss party to either Party. Escrow Agent may execute honor any of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the event Escrow Agent receives instructions, claims or demands from any Party hereto which conflict with the provisions of this Escrow 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. The Escrow Agent shall have no duty to solicit any payments which may be due itit or the Escrow Fund, including, without limitation, the Funds Escrow Amount 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 by it except to the extent that a Final Order of 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 Escrow Fund 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 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. Party A shall promptly pay, upon demand, the reasonable fees and expenses of any such counsel. Escrow Agent shall have no liability or responsibility to question or determine the accuracy or reasonableness of any Claimed Amount. Escrow Agent shall not be obligated to take any legal action or commence any proceeding in connection with the Escrow Fund, any account in which Escrow Fund 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, Party A Representative and/or Party B Representative with respect to the holding or disposition of any portion of the Escrow Fund or any other obligations of Escrow Agent hereunder or Escrow Agent shall receive instructions, claims or demands from any Party which the Escrow Agent determines, in its sole 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 Escrow Fund or Escrow Agent’s proper actions with respect to its obligations hereunder, or (iii) Party A Representative and Party B Representative have not within 30 days of the furnishing by Escrow Agent of a notice of resignation pursuant to Section 9 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 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 other appropriate method) any Competent Court, for instructions with respect to such dispute or uncertainty, and to the extent required or permitted by law, pay into such court, for holding and disposition in accordance with the instructions of such Competent Court, the entire Escrow Fund. Escrow Agent shall have no liability to any Party or any other individual or entity with respect to any suspension of performance or disbursement into a 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 Escrow Fund or any delay in or with respect to any other action required or requested of Escrow Agent. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. 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 Party A and Party B 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 Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the PartiesPurchaser, the Stockholder Representative and any other person or entity, in connection herewith, including the Merger Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement
(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 shall control the actions of Escrow Agent. control.
(c) The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the Purchaser or the Stockholder Representative without inquiry and without requiring substantiating evidence of any kind 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 Escrow Shares, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 9 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 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 ’s gross negligence or willful misconduct was the primary cause of any direct loss to either Partythe Purchaser, the Stockholder Representative or any beneficiary or 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 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 receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either to (a) refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or by uncertainty to the satisfaction of the Escrow Agent, until an Order or judgement of a final court order of competent jurisdiction agrees to pursue any redress or (b) file an action recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making 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 a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
Appears in 1 contract
Escrow Agent. The Escrow Agent shall have undertakes to perform only those such duties as are specifically and expressly provided set forth herein, which shall be deemed purely ministerial in nature, and no other duties duties, including but not limited to any fiduciary duties, shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Purchase Agreement, nor shall the Escrow Agent be required to determine if any Party Person has complied with any other agreementsuch 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 shall will control the actions of Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction Joint Instruction or request delivered by the Parties Final Determination furnished to it hereunder and believed by it to be genuine and to have been signed and presented by an Authorized Representative(s)authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, as applicable, without inquiry the Parties shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A‑1 and without requiring substantiating evidence of any kind 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 Instruction or Final Determination. 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 ’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 To the event Escrow Agent receives instructionsextent practicable, 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 agree to pursue any redress or by a final court order or (b) file an action recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, incidentalindirect, punitive, indirect incidental or consequential loss losses or damage 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 loss losses or damage damages and regardless of the form of action.
Appears in 1 contract
Sources: Escrow Agreement (BOSTON OMAHA Corp)
Escrow Agent. The Escrow Agent shall have undertakes to perform only those such duties as are specifically expressly set forth in this Section 2.21 and expressly provided hereinin the Aleris Increase Joinder Amendment, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has no occurred and is continuing. The Escrow Agent shall not 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 requirement requirements to comply comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the PartiesAleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Party Person has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of any other agreement between such agreements, except to the Parties, extent such provisions are repeated in this Section 2.21 or in the terms and conditions of this Agreement shall control the actions of Escrow AgentAleris Increase Joinder Amendment. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties 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 Representative(s)the Designated Company. On the Aleris Increase Joinder Effective Date, as applicable, without inquiry and without requiring substantiating evidence the Designated Company shall deliver to the Escrow Agent authorized signers’ forms in the form of any kind and 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. 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 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. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due itto it or in respect of the Escrowed Term Loans, includinginterest, without limitation, or any applicable fees (including arranger and commitment fees). In the Funds nor shall event that the Escrow Agent have shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any duty Person which, in its opinion, conflict with any of the provisions of this Section 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 the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Aleris Incremental Term Lenders. The Escrow Agent may interplead all of the 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 confirm such interpleaded assets or verify any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the accuracy or correctness event of any amounts deposited 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 hereunder or thereunder. The Escrow Agent shall have no liability or obligation with it hereunderrespect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. 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 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, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. 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 shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the PartiesParent and any other person or entity, in connection herewith, if any, including without limitation the Merger Agreement or nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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.
(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 shall control the actions of Escrow Agent. control.
(c) The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the Parent without inquiry and without requiring substantiating evidence of any kind 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 Escrow Shares, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section X hereof and the Escrow Agent 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 ’s gross negligence or willful misconduct was the primary cause of any direct loss to either PartyThunder Power Shareholders or the Parent. 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 Thunder Power Shareholders or the Parent. In the event that the Escrow Agent receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or uncertainty to the satisfaction of the Escrow Agent or by a final court and non-appealable order or (b) file an action judgment of a court of competent jurisdiction that agrees to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making 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 a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
Appears in 1 contract
Escrow Agent. Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties duties, including but not limited to any fiduciary duty, shall be implied. Notwithstanding anything to the contrary, Escrow Agent has no knowledge of, nor any requirement obligation to comply with, the terms and conditions of any other agreement between agreement, Escrow Agent shall not be responsible for determining the Partiesmeaning of any capitalized term not entirely defined herein, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Partiesagreement, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. Escrow Agent shall Any notice, document, instruction or request delivered by a Party but not required under this Agreement may be liable for any action taken, suffered or omitted to be taken disregarded 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 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 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 final 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 itit or the Fund, including, without limitation, the Funds 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. Anything in this Agreement The Parties grant to the contrary notwithstanding, in no event shall Escrow Agent be liable a lien and security interest in the Fund in order to secure any indemnification obligations of the Parties or obligation for specialfees or expenses owed to Escrow Agent hereunder. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, incidentalIN NO EVENT SHALL ESCROW AGENT BE LIABLE FOR SPECIAL, punitiveINCIDENTAL, indirect or consequential loss or damage of any kind whatsoever PUNITIVE, 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 Escrow Agent has been advised of the likelihood of such loss or damage 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 shall have only those duties as are specifically and expressly provided hereinset forth in this agreement on its part to be performed, which shall be deemed purely ministerial in nature, and no other duties or obligations of any kind shall be impliedimplied nor read into this Agreement against or on the part of the Escrow Agent. The Escrow Agent has 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 requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation, the Underlying Agreements, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. 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 shall control only in connection with any matter related to the actions of Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind 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 Escrow Asset, 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 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. 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 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. The Escrow Agent shall have no duty to solicit any payments which may be due it, including, without limitation, it or the Funds Escrow Asset 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 .
(b) The Escrow Agent shall not be liable for specialany action taken, incidental, punitive, indirect suffered or consequential loss 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 damage willful misconduct was the primary cause of any kind whatsoever (including but not limited loss to lost profits), even if either Party. The Escrow Agent has been advised 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 likelihood 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 given a direction in writing by the Parties which eliminates such loss ambiguity or damage uncertainty to the satisfaction of Escrow Agent or by a final and regardless non-appealable order or judgment of a court of competent jurisdiction. The Parties agree to pursue any redress or recourse in connection with any dispute without making the form of actionEscrow Agent a party to the same.
Appears in 1 contract
Escrow Agent. (a) The duties and obligations of the Escrow Agent shall have only those be determined solely by the express provisions of this Agreement, and the Escrow Agent shall not be liable except in respect of the performance of such duties and obligations as are specifically and expressly provided hereinset forth in this Agreement. Unless specifically agreed to by the Escrow Agent in this Agreement, which the Escrow Agent shall not be bound in any way by any agreement or contract among any of the parties to this Agreement, including the Stock Purchase Agreement.
(b) The Escrow Agent shall not be responsible in any manner whatsoever for any failure or inability of Buyer or Sellers' Agent to honor any of the provisions of this Agreement.
(c) The Escrow Agent shall be deemed purely ministerial fully protected in natureacting on and relying upon any written advice, and no certificate, notice, direction, instruction, request, or other duties shall be implied. paper or document which the Escrow Agent has no knowledge of, nor any requirement in good faith believes to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be genuine (without being required to determine if any Party has complied with any other agreement. Notwithstanding the terms authenticity or the correctness of any other agreement between fact stated therein or the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction propriety or request delivered by the Parties believed by it to be genuine validity or service thereof) and to have been signed or presented by an Authorized Representative(s)the proper party or parties, as applicableand may assume that any Person purporting to give such advice, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such documentcertificate, notice, direction instruction or request. request or other paper or document has been duly authorized to do so.
(d) The Escrow Agent shall not be liable for any action taken, suffered act reasonably done or step reasonably taken or reasonably omitted to be taken by it in good faith or for any mistake in fact or law, or for anything which it may reasonably do or refrain from reasonably doing in connection herewith, except to the extent that Escrow Agent's its own gross negligence negligence, bad faith or willful misconduct was the cause of any direct loss to either Party. misconduct.
(e) The Escrow Agent may execute seek the advice of legal counsel in the event of any dispute or question as to the construction of any of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the event Escrow Agent receives instructions, claims or demands from any Party hereto which conflict with the provisions of this AgreementAgreement or its duties hereunder, and it shall incur no liability and shall be fully protected in respect of any action taken, omitted or suffered by it in good faith in accordance with the written opinion of such counsel. If a controversy arises between one or more of the parties hereto, or if between any the parties hereto and any Person not a party hereto, as to whether or not or to whom the Escrow Agent receives conflicting instructions from shall deliver the PartiesEscrow 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 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 either to assume that no such controversy has arisen unless it has received conflicting written notices from the parties to this Agreement.
(af) refrain from taking Buyer and Sellers shall reimburse and indemnify the Escrow Agent and its members, employees, and agents for, and hold it harmless against any action until it loss, liability or expense including, but not limited to, reasonable counsel fees and disbursements incurred without gross negligence, bad faith or willful misconduct on the part of the Escrow Agent arising out of or 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 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 given a joint written direction executed borne equally by Authorized Representatives 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 Parties which eliminates such conflict or by a final court order or (b) file an action in interpleader. Escrow Agent shall not be deemed to have no duty waived any right with respect to solicit any payments which may be due it, including, without limitation, the Funds nor shall the transaction (other than its service as Escrow Agent have hereunder) between or among it and any duty other party or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionparties hereto.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties duties, including but not limited to any fiduciary duty, shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the 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 Party person or entity has complied with any other agreement. Notwithstanding Underlying Agreement, nor shall any additional obligations of the Escrow Agent be inferred from the terms of any Underlying Agreement, even though reference thereto may be made in this Agreement. 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 and any schedule or exhibit attached to this Agreement shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by furnished to it in accordance with the Parties terms hereof and reasonably believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable. The Escrow Agent shall not be liable to any Party, without inquiry 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 Escrow Amount, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 10 below and without requiring substantiating evidence of the Escrow Agent has been able to satisfy any kind and 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 Account.
(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 ’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 receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either to to: (ai) 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 given (y) a joint written direction executed by Authorized Representatives of both the Parties which eliminates such conflict ambiguity or uncertainty to the satisfaction of the Escrow Agent or (z) a court order issued by a final 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 (bii) file an action in interpleader. Escrow Agent shall have no duty The Parties agree to solicit pursue any payments which may be due it, including, redress or recourse in connection with any dispute without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. (a) The duties of the Escrow Agent shall have only those duties as are specifically and expressly provided herein, which hereunder shall be deemed purely ministerial in nature, and . Under no other duties shall be implied. Escrow Agent has no knowledge of, nor any requirement to comply with, circumstances will the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required deemed to determine if any Party has complied with be a fiduciary to Buyer or the Sellers’ Representative or any other agreementperson under this Agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and The Escrow Agent shall be under no duty obligated to inquire into act only as specifically set forth in this Agreement. The Escrow Agent is hereby authorized to comply with any orders, judgments or investigate the validity, accuracy or content decrees of any such document, notice, instruction or request. Escrow Agent arbitrator and of any court and 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 as a result of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the event Escrow Agent receives instructions, claims or demands from any Party hereto which conflict compliance with the provisions same.
(b) As to any legal questions arising in connection with the administration of this Agreement, or if the Escrow Agent receives conflicting instructions 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 Parties, payee or recipient a receipt therefor.
(e) The Escrow Agent shall be entitled either to (a) refrain from taking any action until contemplated by this Agreement in the event it becomes aware of any dispute between the Sellers’ Representative and 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 D hereto. All such fees shall be given a joint written direction executed paid 50% by Authorized Representatives Buyer and 50% by the Sellers’ Representative (on behalf of Sellers).
(g) In the event of any disagreement among the parties hereto resulting in adverse claims or demands being made in connection with any portion of the Parties Escrow Amount as a result of which eliminates such conflict or by a final court order or (b) file an the Escrow Agent is, in good faith, in reasonable doubt as to what action in interpleader. it should take hereunder, the Escrow Agent shall be entitled to retain the Escrow Amount until the Escrow Agent shall have no duty to solicit received (i) a Final Order directing delivery of the Escrow Amount, or (ii) a Joint Written Notice, in which event Escrow Agent shall disburse such portion of the Escrow Amount in accordance with such Final Order or Joint Written Notice. Notwithstanding the foregoing, at any payments which may be due it, including, without limitation, the Funds nor shall time the Escrow Agent have may file an interpleader action in any duty or obligation to confirm or verify court of competent jurisdiction, and upon the accuracy or correctness filing thereof, the Escrow Agent shall be relieved of any amounts deposited with it hereunder. Anything in this Agreement all liability as to the contrary notwithstandingEscrow Amount and shall be entitled to recover attorneys’ fees, expenses and other costs incurred in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of commencing and maintaining any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of interpleader action.
Appears in 1 contract
Escrow Agent. 5.1 The Escrow Agent shall have only those duties as are specifically and expressly provided hereinherein (and no implied duties), which shall be deemed purely ministerial in nature, and shall under no other duties shall circumstances be implieddeemed a fiduciary for the Depositor. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor or have any requirement requirements to comply with, the terms and conditions of any other agreement between agreement, instrument or document of the PartiesDepositor, in connection herewith, if any, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding such agreements, even though reference thereto may be made in this Escrow Agreement.
5.2 In the event of any conflict between the terms and provisions of this Escrow Agreement and those of any other agreement between with the PartiesDepositor, the terms and conditions of this Escrow Agreement shall control control.
5.3 Subject to Section 11, the actions of Escrow Agent. Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper party or parties without inquiry and without requiring substantiating evidence of any kind and kind. Subject to 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 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 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. .
5.4 The Escrow Agent shall have no duty to solicit any payments which may be due itto it or the Escrow Fund, including, without limitation, the 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.
5.5 In no circumstances shall the Escrow Agent be obliged to make any payment from the Escrow Account where this would result in a negative balance on the Escrow Account.
5.6 The Escrow Agent shall have no duty or obligation to make any calculations of any kind hereunder.
5.7 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.
5.8 The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable only for its gross negligence or willful misconduct (as finally adjudicated in a court of competent jurisdiction) in the selection of any such agent or attorney).
5.9 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.
5.10 None of the Escrow Agent and its affiliated entities, and their respective directors, officers and employees shall in any circumstances be liable to any Party for any loss, damage or expense suffered by or incurred to any Party as a result of the insolvency of the Escrow Agent or any of its affiliated entities or any act, omission or insolvency of any settlement system.
5.11 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 Escrow Agreement or any applicable law, 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, it 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 given a direction in writing by the Parties which eliminates such ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final and non-appealable order or judgment of a court of competent jurisdiction..
5.12 The Depositor agrees to pursue any redress or recourse in connection with any dispute between the Depositor and a Designee without making the Escrow Agent a party to the same.
5.13 Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
5.14 Any liability of the Escrow Agent under this Escrow Agreement will be limited to the amount of fees paid to the Escrow Agent.
5.15 The Escrow Agent may engage or be interested in any financial or other transaction with Depositor or its or affiliates, and may act on the instructions of, or as depositary, trustee or agent for, any committee or body of holders of obligations of the Depositor or its affiliate, as freely as if it were not the Escrow Agent hereunder.
5.16 The Escrow Agent shall not be obligated to expend or risk its own funds or to take any action which it believes would expose it to expense or liability or to a risk of incurring expense or liability.
5.17 The rights and remedies of the Escrow Agent set forth in this Escrow Agreement shall be cumulative, and not exclusive, of any rights and remedies available to it at law or equity or otherwise.
Appears in 1 contract
Sources: Escrow Agreement (Agria Corp)
Escrow Agent. The Escrow Agent shall have undertakes to perform only those such duties as are specifically and expressly provided set forth herein, which shall be deemed purely ministerial in nature, , including but not limited to fiduciary duties and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Merger Agreement or the Loan Agreement, nor shall the Escrow Agent be required to determine if any Party Person has complied with any other agreementsuch 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 shall will control the actions of Escrow Agent. Agent The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties Joint Release Instruction furnished to it hereunder and believed by it to be genuine and to have been signed and presented by an Authorized Representative(s)the proper Party or Parties. Concurrent with the execution of this Agreement, as applicable, without inquiry the Parties shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A-1 and without requiring substantiating evidence of any kind 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 not have no duty to solicit any payments which may be liable due it or the Escrow Account. 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 Final Determination. 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 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 gross negligence or ’s fraud, willful misconduct was or gross negligence. To 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 receives instructionsextent practicable, 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 agree to pursue any redress or by recourse in connection with any dispute (other than with respect to a final court order or (bdispute involving the Escrow Agent) file an action in interpleader. Escrow Agent shall have no duty to solicit any payments which may be due it, including, without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable 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, incidentalindirect, punitive, indirect incidental or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. Escrow Agent shall have only those duties referred to in the definition thereof contained in Section 1.1 hereof has agreed to act as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no such for the convenience of the parties without fee or other duties shall be implied. Escrow Agent has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of charges for such services as Escrow Agent. Escrow Agent may conclusively rely upon shall not be liable:
(a) to any written noticeof the parties for any act or omission to act except for its own willful misconduct; (b) for any legal effect, documentinsufficiency, instruction or request undesirability of any instrument deposited with or delivered by Escrow Agent or exchanged by the Parties parties hereunder, whether or not Escrow Agent prepared such instrument; (c) for any loss or impairment of funds that have been deposited in escrow while those funds are in the course of collection, or while those funds are on deposit in a financial institution, if such loss or impairment results from the failure insolvency or suspension of a financial institution; (d) for the expiration of any time limit or other consequence of delay, unless a properly executed written instruction, accepted by Escrow Agent, has instructed Escrow Agent to comply with said time limit; (e) for the default, error, action or omission of either party to the escrow. Escrow Agent, in its capacity as escrow agent, shall be entitled to rely on any document or paper received by it, believed by it such Escrow Agent, in good faith, to be genuine bona fide and genuine. In the event of any dispute as to have been signed the disposition of the Deposit, or any monies held in escrow, or of any documents held in escrow, Escrow Agent may, if such Escrow Agent so elects, interplead the matter by filing an Authorized Representative(sinterpleader action in a court of general jurisdiction in the county or circuit where an individual Real Property is located (to the jurisdiction of which both parties do hereby consent), as applicableand pay into the registry of the court the Deposit, without inquiry and without requiring substantiating evidence or deposit any such documents with respect to which there is a dispute in the Registry of any kind and such court, whereupon such Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of relieved and released from any such document, notice, instruction or requestfurther liability as Escrow Agent hereunder. 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 compliance with any legal process subpoena, writ, order, judgment and decree of any direct loss to either Party. Escrow Agent may execute any of its powers court, whether issued with or without jurisdiction, and perform any of its duties hereunder directly whether or through affiliates not subsequently vacated, modified set aside or agents. In the event 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 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. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionreversed.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hospitality Properties Trust)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall not be deemed purely ministerial in nature, and no other duties shall be implied. Escrow Agent has no knowledge ofresponsible for, nor be required to, enforce any requirement to comply with, of the terms and or conditions of any other agreement between Westway, Founder, the PartiesInitial Stockholders and/or Holdings, nor shall the Escrow Agent be required responsible for the performance by Westway, Founder, the Initial Stockholders or Holdings of their respective obligations under this Agreement.
(b) If the Escrow Agent is uncertain as to determine if any Party has complied its duties or rights hereunder, or shall receive instructions with respect to the Escrow Funds or the Escrow Shares which, in its sole determination, are in conflict either with other instructions received by it, or with any other agreement. Notwithstanding provision of this Agreement, it shall be entitled to hold the terms Escrow Funds, the Escrow Shares or a portion thereof, in the Escrow Account, in the manner then held, pending the resolution of such uncertainty to the Escrow Agent’s sole satisfaction, by final judgment of a court or court of competent jurisdiction, or otherwise.
(c) In the event of any other agreement disagreement between the Partiesundersigned or any of them, and/or any other person, resulting in adverse claims and demands being made in connection with or for the Escrow Items, 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 failure or refusal to comply with such conflicting or adverse demands. The Escrow Agent will be entitled to continue so to refrain and refuse so to act until all differences with respect thereto will have been resolved by agreement of the parties hereto and the Escrow Agent will have been notified thereof in writing signed by the parties hereto. In the event of such disagreement that continues for sixty (60) days or more, the Escrow Agent in its discretion may file a suit in interpleader for the purpose of having the respective rights of the claimants adjudicated, if the Escrow Agent determines such action to be appropriate under the circumstances, and may deposit with the court all documents and property held hereunder. Westway agrees to pay all reasonable out-of-pocket costs and expenses incurred by the Escrow Agent in such action, including reasonable attorney’s fees.
(d) The Escrow Agent hereby accepts its appointment and agrees to act as escrow agent under the terms and conditions of this Escrow Agreement shall control and acknowledges receipt of the actions of Escrow Items. Westway will pay to the Escrow Agent as payment in full for its services hereunder the Escrow Agent’s compensation set forth in Schedule III hereto. Westway further agree to reimburse the Escrow Agent may conclusively rely upon any written noticefor all reasonable out-of-pocket expenses, document, instruction disbursements and advances incurred or request delivered made by the Parties believed by it to Escrow Agent in the performance of its duties hereunder (including reasonable fees, and out-of-pocket expenses and disbursements, of its counsel).
(e) The Escrow Agent shall not be genuine and to have been signed by an Authorized Representative(s)liable for any action taken or omitted hereunder, as applicable, without inquiry and without requiring substantiating evidence or for the misconduct of any kind and employee, agent or attorney appointed by it, except in the case of willful misconduct or gross negligence. The Escrow Agent shall be under no duty entitled to inquire into or investigate the validityconsult with counsel of its own choosing, accuracy or content of any such document, notice, instruction or request. Escrow Agent and 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 receives instructions, claims or demands from any Party hereto which conflict accordance with the provisions advice of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent shall be entitled either to such counsel.
(af) 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. The Escrow Agent shall have no duty responsibility at any time to solicit ascertain whether or not any payments which may be due it, including, without limitation, the Funds nor shall security interest exists in the Escrow Agent have Items, or to file any duty or obligation to confirm or verify financing statement under the accuracy or correctness of any amounts deposited Uniform Commercial Code, with it hereunder. Anything in this Agreement respect to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect items or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionpart thereof.
Appears in 1 contract
Sources: Transaction Agreement (Shermen WSC Acquisition Corp)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the PartiesIssuer and Falcon’s, on the one hand, and the Earnout Participants, on the other hand, or any other person or entity, in connection herewith, if any, including without limitation the Merger Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement.
(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 PartiesIssuer or Falcon’s, on the one hand, and any Earnout Participant, on the other hand, or any other person or entity, the terms and conditions of this Agreement shall control the actions of Escrow Agent. control.
(c) The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an the Authorized Representative(s), as applicable, Signatories set forth in Schedule 1 without inquiry and without requiring substantiating evidence of any kind kind. The Escrow Agent shall not be liable to any Earnout Participant 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 Earnout Shares and the Earnout Units, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 11 and the Escrow Agent 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 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 ’s gross negligence or willful misconduct was the primary cause of any direct loss to either Partythe Issuer, Falcon’s or the Earnout Participants. 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 the Issuer, Falcon’s or the Earnout Participants. In the event that the Escrow Agent receives 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 Authorized Signatories which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either to (a) refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or uncertainty to the satisfaction of the Escrow Agent or by a final court and non-appealable order or (b) file an action judgement of a court of competent jurisdiction agrees to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making 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 a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
Appears in 1 contract
Sources: Earnout Escrow Agreement (Falcon's Beyond Global, Inc.)
Escrow Agent. 4.1 The Escrow Agent shall have only those duties as are specifically and expressly provided hereinherein (and no implied duties), which shall be deemed purely ministerial in nature, and shall under no other duties circumstances be deemed a fiduciary for the Parties. The Escrow Agent shall be implied. Escrow Agent has no neither responsible for, nor chargeable with knowledge of, nor or have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the PartiesParties in connection herewith, if any, including without limitation the Underlying Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding such agreements, even though reference thereto may be made in this Agreement.
4.2 In the event of any conflict between the terms and provisions of this Agreement and those of the Underlying Agreement or any other agreement between among the Partiesparties to this Agreement, the terms and conditions of this Agreement shall control control.
4.3 Subject to Section 11, the actions of Escrow Agent. Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper person(s) without inquiry and without requiring substantiating evidence of any kind and kind. Subject to Section 11, 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 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 verify the correctness of any amounts deposited with the Escrow Agent hereunder. The Escrow Agent, however, shall report and inform Party A and Party B of the receipt of any deposits to the Escrow Account on a timely basis.
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 perform 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 Fund to such agent or attorney without further notice to or consent from any of the Parties to the extent that such disclosure (i) is required by and/or in compliance with relevant rules and regulations and (ii) is reasonably deemed as necessary in the course when the Escrow Agent is performing its assigned duties. 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 good faith except to accordance with, or in reliance upon, the extent that Escrow Agent's gross negligence advice or willful misconduct was the cause opinion of any direct loss to either Party. Escrow Agent may execute any of its powers and perform any of its duties hereunder directly such counsel, accountants or through affiliates or agents. other skilled persons.
4.8 In the event that the Escrow Agent receives 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 which, in its opinion, are insufficient or incomplete or conflict with any of the provisions of this AgreementAgreement or any applicable law, rule, regulation, order, ruling or directive, or if Escrow Agent receives conflicting instructions from any rule, policy, code, requirement or determination of any government, regulatory or self-regulatory body or market practice, the Parties, Escrow Agent shall be entitled either to (a) 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 given a joint written direction executed in writing by Authorized Representatives of the Parties which eliminates such conflict ambiguity or uncertainty to the satisfaction of the Escrow Agent or by a final court and non-appealable order or (b) file an action in interpleader. judgment of a court of competent jurisdiction..
4.9 The Escrow Agent shall have no duty to solicit may engage or be interested in any payments which financial or other transaction with either or both of the Parties or affiliate(s) thereof, and may be due itact on the instructions of, includingor as depositary, without limitationtrustee or agent for, the Funds nor shall any committee or body of holders of obligations of such Party or such affiliate(s), as freely as if it were not the Escrow Agent have any duty or obligation to confirm or verify hereunder.
4.10 The rights and remedies of the accuracy or correctness of any amounts deposited with it hereunder. Anything Escrow Agent set forth in this Agreement shall be cumulative, and not exclusive, of any rights and remedies available to it at law or equity or otherwise.
4.11 The Parties agree to pursue any redress or recourse in connection with any dispute without making the Escrow Agent a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
Appears in 1 contract
Escrow Agent. Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties duties, including but not limited to any fiduciary duty, shall be implied. Escrow Agent has no knowledge of, nor any requirement obligation to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy accuracy, or content of any such document, notice, instruction or request. Any notice, document, instruction, or request delivered by a Party but not required under this Agreement may be disregarded by Escrow Agent and returned to the sending Party. Escrow Agent shall not be liable for any action taken, suffered suffered, or omitted to be taken by it in good faith except to the extent that Escrow Agent's ’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 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 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 final court of competent jurisdiction (it being understood that Escrow Agent shall be entitled conclusively to rely and act upon any such court order delivered in compliance with Section 3(b)); or (b) file an action in interpleader. Escrow Agent shall have no duty to solicit any payments which may be due it, including, without limitation, the Escrow 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. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect indirect, or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Purchase Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. 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 Parties, the terms and conditions of this Agreement shall control only in connection with any matter related to the actions of Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind 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 Escrowed Shares, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 11 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 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 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. The Escrow Agent shall have no duty to solicit any payments which may be due it, including, without limitation, it or the Funds Escrowed Shares nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall .
(b) The Escrow Agent shall not be liable for specialany action taken, incidental, punitive, indirect suffered or consequential loss 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 damage willful misconduct was the primary cause of any kind whatsoever (including but not limited loss to lost profits), even if either Party. The Escrow Agent has been advised 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 likelihood 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 given a direction in writing by the Parties which eliminates such loss ambiguity or damage uncertainty to the satisfaction of Escrow Agent or by a final and regardless non-appealable order or judgment of a court of competent jurisdiction. The Parties agree to pursue any redress or recourse in connection with any dispute without making the form of actionEscrow Agent a party to the same.
Appears in 1 contract
Escrow Agent. The Escrow Agent shall have undertakes to perform only those such duties as are specifically and expressly provided hereinset forth in this Section 2.18, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has no occurred and is continuing. The Escrow Agent shall not 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 requirement requirements to comply comply, in its capacity as Escrow Agent, with, the terms and conditions of any other agreement agreement, instrument or document between or among any Loan Party and any Lender, in connection herewith or otherwise, including any other Loan Document and including the PartiesAleris Merger Agreement, nor shall the Escrow Agent be required to determine if any Party Person has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of any other agreement between such agreements, except to the Parties, the terms and conditions of extent such provisions are repeated in this Agreement shall control the actions of Escrow AgentSection 2.18. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties 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 Representative(s)the Designated Company or the Borrower. On the Effective Date, as applicable, without inquiry and without requiring substantiating evidence the Designated Company and/or the Borrower shall deliver to the Escrow Agent authorized signers’ forms in the form of any kind and 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. 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 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. The Escrow Agent shall have no duty to solicit any payments from any Person which may be due itto it or in respect of the Escrowed Term Loans, includinginterest, without limitation, or any applicable fees (including arranger and commitment fees). In the Funds nor shall event that the Escrow Agent have shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any duty Person which, in its opinion, conflict with any of the provisions of this Section 2.18, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely the Escrowed Amounts held in escrow until it shall be given a joint direction from the Loan Parties and the Lenders. The Escrow Agent may interplead all of the 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 confirm such interpleaded assets or verify any action or nonaction based on such declaratory judgment. The Escrow Agent may consult with legal counsel of its selection in the accuracy or correctness event of any amounts deposited dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder. The Escrow Agent shall have no liability or obligation with it hereunderrespect to the Escrowed Amounts except for the Escrow Agent’s willful misconduct or gross negligence. 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 liable, directly or indirectly, for specialany (x) damages, incidental, punitive, indirect losses or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised expenses arising out of the likelihood of such loss services provided hereunder other than damages, losses or damage and regardless of expenses which result from the form of action.Escrow
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the PartiesCompany, Holders and any other person or entity, in connection herewith, if any, including without limitation the Underlying Agreement or nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement.
(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 shall control the actions of Escrow Agent. control.
(c) The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the Company without inquiry and without requiring substantiating evidence of any kind 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 Escrow Shares, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 9 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 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 ’s gross negligence or willful misconduct was the primary cause of any direct loss to either Partythe Company, the Holders or their beneficiaries. 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 the Company, the Holders or their beneficiaries. In the event that the Escrow Agent receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either to (a) refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be given a joint written direction executed by Authorized Representatives of the Parties Company in writing which eliminates such conflict ambiguity or uncertainty to the satisfaction of the Escrow Agent or by a final court and non-appealable order or (b) file an action judgement of a court of competent jurisdiction the Company agrees to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making 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 a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
Appears in 1 contract
Sources: Bonus Shares Escrow Agreement (GCL Global Holdings LTD)
Escrow Agent. (a) The Escrow Agent represents and warrants to the Parties that the Escrow Agent is a “bank” as defined in Paragraph (A) of Section 3(a)(6) of the Securities Exchange Act of 1934, as amended. The deposit accounts of each Approved Bank is insured by the FDIC to the maximum amount permitted by law.
(b) All funds received from Investors by the Company or the Placement Agent in payment for the Shares (“Investor Funds”) will be delivered to the Escrow Agent by noon Eastern Time on the next business day following the day upon which such Investor Funds are received by the Company or the Placement Agent, and shall, upon receipt of good and collected funds by the Escrow Agent, be retained in the Escrow Account by the Escrow Agent and invested as provided in Section 3(a) hereof. During the term of this Escrow Agreement, the Company and the Placement Agent shall instruct Investors to make all checks payable to the order of “Computershare Trust Company, N.▇.▇▇ Escrow Agent for Federal Life Group, Inc.” and shall cause all checks received by each of them in payment for the Shares to be endorsed in favor of the Escrow Agent and delivered to the Escrow Agent for deposit in the Escrow Account. Investor Funds also may be wired directly to the Escrow Account using wire instructions provided by the Escrow Agent.
(c) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the PartiesCompany, the Placement Agent and the Investors, in connection herewith, if any, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. In the event of any conflict between the terms and provisions of this Agreement, any schedule or exhibit attached to this Agreement, or any other agreement between among the PartiesCompany, the Placement Agent and the Investors, the terms and conditions of this Agreement shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind 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 Fund, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 11 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 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 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. The Escrow Agent shall have no duty to solicit any payments which may be due itit or the Fund, including, without limitation, the Funds 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.
(d) 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 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 given a direction in writing by the Parties which eliminates such ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final and non-appealable order or judgment of a court of competent jurisdiction. The Parties agree to pursue any redress or recourse in connection with any dispute 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 special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between Sphere and any other person or entity, in connection herewith, if any, including without limitation the PartiesUnderlying 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 Party person or entity has complied with any other agreement. Notwithstanding 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. 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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the Sphere without inquiry and without requiring substantiating evidence of any kind 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 Escrow Asset, 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 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 Asset 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 ’s gross negligence or willful misconduct was the primary cause of any direct loss to either PartySphere 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 receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or uncertainty to the satisfaction of the Escrow Agent or by a final court and non-appealable order or (b) file an action judgment of a court of competent jurisdiction. Sphere agrees to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making 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 a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
Appears in 1 contract
Sources: Escrow Agreement (Sphere 3D Corp)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided hereinset forth in this Agreement on its part to be performed, which shall be deemed purely ministerial in nature, and no other duties or obligations of any kind shall be impliedimplied nor read into this Agreement against or on the part of the Escrow Agent. The Escrow Agent has 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 requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Underlying Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. 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 shall control only in connection with any matter related to the actions of Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind 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 Escrow Asset, 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 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. 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 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. The Escrow Agent shall have no duty to solicit any payments which may be due it, including, without limitation, it or the Funds Escrow Asset 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 .
(b) The Escrow Agent shall not be liable for specialany action taken, incidental, punitive, indirect suffered or consequential loss 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 damage willful misconduct was the primary cause of any kind whatsoever (including but not limited loss to lost profits), even if either Party. The Escrow Agent has been advised 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 likelihood 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 given a direction in writing by the Parties which eliminates such loss ambiguity or damage uncertainty to the satisfaction of Escrow Agent or by a final and regardless non-appealable order or judgment of a court of competent jurisdiction. The Parties agree to pursue any redress or recourse in connection with any dispute without making the form of actionEscrow Agent a party to the same.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between Tuatara and any other person or entity, in connection herewith, if any, including without limitation the PartiesMerger Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement.
(b) In the event of any other agreement conflict between the Partiesterms and provisions of this Agreement, those of the Merger Agreement, or any schedule or exhibit attached to this Agreement, the terms and conditions of this the Merger Agreement shall control the actions of Escrow Agent. control.
(c) The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, Tuatara without inquiry and without requiring substantiating evidence of any kind 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 Escrow Shares, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 9 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 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 ’s fraud, gross negligence or willful misconduct was the cause of any direct loss to either PartyTuatara 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.
(e) The Escrow Agent, at its own cost and expense, may consult with counsel, accountants and other skilled persons to be selected and retained by it. In the event that the Escrow Agent receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either to (a) refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or uncertainty to the reasonable satisfaction of the Escrow Agent or by a final court and non-appealable 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 Funds nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness judgement of any amounts deposited with it hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage a court of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actioncompetent jurisdiction.
Appears in 1 contract
Escrow Agent. Escrow Agent hereby agrees and covenants with Parent and the Representative that it shall have perform all of its obligations under this Agreement and shall not deliver custody or possession of any of the Escrow Funds to anyone, except pursuant to the express terms of this Agreement or as otherwise required by applicable Law. Escrow Agent hereby undertakes to perform only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties duties, including but not limited to any fiduciary duties, shall be implied, other than the implied duty of good faith and fair dealing. Escrow Agent has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon upon, and shall not be liable, for acting in accordance with any written notice, document, instruction Joint Direction or request Release Order delivered to it by the Parties any Party in accordance with Section 9 and reasonably believed by it Escrow Agent in good faith to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence provided that Escrow Agent has fulfilled its obligations under Section 4(c) to confirm any funds transfer instruction received in the name of any kind and Parent or Representative. Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction Joint Direction or requestRelease Order. 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 ’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 any of its affiliates or agents, provided however that no such delegation of powers or duties will release Escrow Agent from any of its obligations under this Agreement. In the event that Escrow Agent is uncertain as to its duties or rights hereunder or receives instructions, claims or demands from any Party hereto which that conflict with the provisions of this Agreement, Agreement or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent shall promptly notify the Parties of such uncertainty or apparent conflict and, following delivery of such notice and until such time as the Parties deliver revised instructions to Escrow Agent, Escrow Agent shall be entitled either to (a) refrain from taking any action until it and shall not be liable for refraining to take any action, and its sole obligation shall be given to keep safely all property held in escrow until shall be directed otherwise in a joint written direction executed by Authorized Representatives of the Parties which eliminates such conflict Joint Direction or by a final court order or (b) file an action in interpleaderRelease Order. Escrow Agent shall have no duty to solicit any payments which that may be due itto it or the Escrow Account, including, without limitation, the Funds Escrow Amount, 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 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 Escrow Agent) without making Escrow Agent a party to the same. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, IN NO EVENT SHALL ESCROW AGENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF ESCROW AGENT HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION. Escrow Agent 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. Escrow Agent shall not be responsible for or under, or chargeable with knowledge of, the terms and conditions of any other agreement, instrument or document executed between/among the parties hereto, except as may be specifically provided in this Agreement or in any Joint Direction or Release Order delivered to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised hereunder. This Agreement sets forth all of the likelihood obligations of such loss Escrow Agent, and no additional obligations shall be implied from the terms of this Agreement or damage and regardless of the form of actionany other agreement, instrument or document.
Appears in 1 contract
Sources: Escrow Agreement (Kaleyra, Inc.)
Escrow Agent. Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties duties, including, but not limited to, any fiduciary duty, shall be implied. Notwithstanding anything to the contrary, Escrow Agent has no knowledge of, nor any requirement obligation to comply with, the terms and conditions of any other agreement between among the PartiesParties (other than the Credit Agreement and related documents thereto and for the avoidance of doubt, expressly disclaims knowledge of the Commitment Letter and Fee Letter), Escrow Agent shall not be responsible for determining the meaning of any capitalized term not entirely defined herein, nor shall Escrow Agent be required to determine if any Party has complied with any other agreementagreement or document. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow AgentAgent with respect to the Funds. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it in good faith to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken may consult legal counsel selected by it in good faith except the event of any dispute or question as to the extent that Escrow Agent's gross negligence or willful misconduct was the cause construction of any direct loss of the provisions hereof or of any other agreement or of its duties hereunder, or relating to either Partyany dispute involving any party hereto, and shall incur no liability and shall be fully indemnified from any liability whatsoever in acting in accordance with the advice of such counsel. The Parties shall promptly pay, upon demand, the reasonable fees and expenses of any such counsel. The Parties agree to perform or cause to be performed all further acts and things, and execute and deliver such further documents, as may be required by law or as Escrow Agent may reasonably request in connection with its duties hereunder. 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, AS DETERMINED BY A FINAL ORDER OF A COURT OF COMPETENT JURISDICTION, WAS THE CAUSE OF ANY DIRECT LOSS TO ANY PARTY. Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. 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 either Party hereto which in Escrow Agent’s good faith 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 to: (a) refrain from taking any action until it shall be given (i) a joint written direction executed by Authorized Representatives of the Parties Joint Release Instruction or Lender Return Instruction which eliminates such ambiguity or conflict or (ii) a final and binding court order issued by a final 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 liability to the Parties or any other person with respect to any such suspension of performance or disbursement into 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 the Escrow Funds or any delay in or with respect to any other action required or requested of Escrow Agent. Escrow Agent shall have no duty to solicit any payments which may be due itto it or the Funds, including, without limitation, the 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. Anything in this Agreement to the contrary notwithstandingANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, in no event shall Escrow Agent be liable for specialIN NO EVENT SHALL ESCROW AGENT BE LIABLE FOR SPECIAL, incidentalINCIDENTAL, punitivePUNITIVE, indirect or consequential loss or damage 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 Escrow Agent has been advised of the likelihood of such loss or damage 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, IN EACH CASE OTHER THAN IN THE EVENT OF ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS DETERMINED BY A FINAL ORDER OF A COURT OF COMPETENT JURISDICTION.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement between agreement, instrument or document, in connection herewith, if any, including without limitation the PartiesSecurities Purchase Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. 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 shall control only in connection with any matter related to the actions of Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper person without inquiry and without requiring substantiating evidence of any kind 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 Escrowed Shares, 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 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. 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 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. The Escrow Agent shall have no duty to solicit any payments which may be due it, including, without limitation, to it or the Funds Escrowed Shares nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall .
(b) The Escrow Agent shall not be liable for specialany action taken, incidentalsuffered 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, punitivefraud, indirect gross negligence or consequential loss or damage willful misconduct was the cause of any kind whatsoever (including but not limited loss to lost profits), even if the Issuer or any Purchaser. The Escrow Agent has been advised 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 Buyer hereto which, in its opinion, conflict with any of the likelihood 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 given a direction in writing by the Issuer or the applicable Buyer, as the case may be, which eliminates such loss ambiguity or damage uncertainty to the satisfaction of Escrow Agent or by a final and regardless non-appealable order or judgment of a court of competent jurisdiction. The Issuer agree to pursue any redress or recourse in connection with any dispute with the form of actionPurchasers without making the Escrow Agent a party to the same.
Appears in 1 contract
Escrow Agent. The Escrow Agent shall have undertakes to perform only those such duties as are specifically and expressly provided set forth herein, which shall be deemed purely ministerial in nature, and no other duties duties, including but not limited to any fiduciary duties, shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement 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, without limitation, the Purchase Agreement, nor shall the Escrow Agent be required to determine if any Party Person has complied with any other agreementsuch agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall will control the actions of the Escrow Agent. The Escrow Agent may conclusively 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 written noticeJoint Release Instruction, documenta Notice of Consummation, instruction Final Determination, or request delivered by Request furnished to it in accordance with the Parties terms hereof and reasonably believed by it in good faith to be genuine and to have been signed by an Authorized Representative(s)Representative of the proper Party or Parties. Concurrent with the execution of this Agreement, the Parties shall deliver to the Escrow Agent Authorized Representatives’ forms in the form of Exhibit A-1 and Exhibit A-2 attached hereto. Other than as applicableset forth herein, without inquiry and without requiring substantiating evidence of any kind and the Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall not have no duty to solicit any payments which may be liable due to it or to the Escrow Fund. 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 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 Request; provided that the Escrow Agent shall promptly notify the Parties of such uncertainty or apparent conflict. 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 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 ’s fraud, gross negligence or willful misconduct was the cause of any direct loss to either Party. To the extent reasonably practicable, 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 may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the event 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 (aAgent) 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 Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. Anything Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, in no event shall the Escrow Agent be liable for any special, incidentalindirect, punitive, indirect incidental or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss losses or damage damages and regardless of the form of action.
Appears in 1 contract
Escrow Agent. 4.1 The Escrow Agent shall have only those duties as are specifically and expressly provided hereinherein (and no implied duties), which shall be deemed purely ministerial in nature, and shall under no other duties circumstances be deemed a fiduciary for the Parties. The Escrow Agent shall be implied. Escrow Agent has no neither responsible for, nor chargeable with knowledge of, nor or have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the PartiesParties in connection herewith, if any, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding such agreements, even though reference thereto may be made in this Agreement.
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 shall control control.
4.3 Subject to Section 11, the actions of Escrow Agent. Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper person(s) without inquiry and without requiring substantiating evidence of any kind and kind. Subject to Section 11, 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. 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 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. .
4.4 The Escrow Agent shall have no duty to solicit any payments which may be due to it, to the Escrow Fund or to the Escrow Account, including, without limitation, the Funds 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 Fund 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 which, in its opinion, are insufficient or incomplete or conflict with any of the provisions of this Agreement or any applicable law, 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 given a direction in writing by the Parties which eliminates such ambiguity or uncertainty to the satisfaction of the Escrow Agent or by a final and non-appealable order or judgment of a court of competent jurisdiction.
4.9 The Escrow Agent may engage or be interested in any financial or other transaction with either or both of the Parties or affiliate(s) thereof, and may act on the instructions of, or as depositary, trustee or agent for, any committee or body of holders of obligations of such Party or such affiliate(s), as freely as if it were not the Escrow Agent hereunder. Anything .
4.10 The rights and remedies of the Escrow Agent set forth in this Agreement shall be cumulative, and not exclusive, of any rights and remedies available to it at law or equity or otherwise.
4.11 The Parties agree to pursue any redress or recourse in connection with any dispute among themselves without making the Escrow Agent a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
Appears in 1 contract
Escrow Agent. The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Asset Purchase Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. 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 shall control only in connection with any matter related to the actions of Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind 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 Escrow Fund, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 11 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 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 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. The Escrow Agent shall have no duty to solicit any payments which may be due it, including, without limitation, it or the Funds Escrow Fund 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 shall not be liable for specialany action taken, incidental, punitive, indirect suffered or consequential loss 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 damage willful misconduct was the primary cause of any kind whatsoever (including but not limited loss to lost profits), even if either Party. The Escrow Agent has been advised 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 likelihood 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 given a direction in writing by the Parties which eliminates such loss ambiguity or damage and regardless uncertainty to the satisfaction of the form Escrow Agent or by a final and non-appealable order or judgment of actiona court of competent jurisdiction. The Parties agree to pursue any redress or recourse in connection with any dispute without making the Escrow Agent a party to the same.
Appears in 1 contract
Sources: Asset Purchase Agreement (DraftDay Fantasy Sports, Inc.)
Escrow Agent. Escrow Agent shall have only those duties as are specifically and expressly provided herein, which ARTICLE 14.1. The Deposit shall be deemed purely ministerial held in natureescrow until Closing by Seller’s attorneys, and no other duties ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP (“Escrow Agent”). The Deposit shall be impliedplaced 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 has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), is acting hereunder as applicablestakeholder only, without inquiry compensation and without requiring substantiating evidence for the convenience and at the request of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or requestparties. Escrow Agent shall not be liable for any action taken, suffered taken or omitted to be taken by it in good faith except to faith, provided that the extent that Escrow Agent's Agent shall be liable for its gross negligence or willful misconduct was the cause of in any direct loss to either Partyevent. Escrow Agent may execute any of its powers shall not be liable for and perform any of its duties hereunder directly or through affiliates or agents. In the event parties jointly and severally agree to indemnify Escrow Agent receives instructions, claims or demands from any Party hereto which conflict with the provisions of this Agreement, or if against and hold Escrow Agent receives conflicting instructions harmless from the Partiespayment of any interest or 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 fail or refuse to pay over any such monies pursuant to a final judgment, order or decree. At any time, Escrow Agent shall be entitled either entitled, in its sole discretion, to (a) refrain from taking apply to any action until it shall be given a joint written direction executed by Authorized Representatives court of competent jurisdiction to determine the rights of the Parties which eliminates parties hereof, and in the event of such conflict or by a final court order or (b) file an action in interpleader. application of the Deposit, and Interest with such court, Escrow Agent shall have be relieved and discharged from any liability or responsibility to the parties hereto.
ARTICLE 14.3. Notwithstanding any other provision of this Agreement, no duty notice, demand, request or other communication to solicit any payments which may be due it, including, without limitation, the Funds nor shall the Escrow Agent have in connection herewith shall be binding on the Escrow Agent unless it is in writing, refers specifically to this Agreement, is addressed to the Escrow Agent and is actually received by the Escrow Agent. Notwithstanding anything herein to the contrary, Escrow Agent shall hold the Deposit as agent for the Seller provided however that Escrow Agent may represent Seller in any duty or obligation to confirm or verify the accuracy or correctness matter arising out of any amounts deposited with it hereunder. Anything in this Agreement to and the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage transaction and Purchaser waives any claim of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised conflict of the likelihood of interest arising from such loss or damage and regardless of the form of actionrepresentation.
Appears in 1 contract
Sources: Purchase Agreement (Tii Network Technologies, Inc.)
Escrow Agent. Escrow Agent's responsibility and liability under this Agreement shall be limited as follows:
(i) Escrow Agent does not represent, warrant or guaranty to the holders of the Notes from time to time the performance of the Company or the Trustee; (ii) Escrow Agent shall have only those duties no responsibility to the Company or the holders of the Notes or the Trustee from time to time as are specifically 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 for all aspects of the Company's business and expressly provided hereinconduct; and (iv) Escrow Agent is not obligated to supervise, which inspect or inform the Company or any third party of any matter referred to above. No implied covenants or obligations shall be deemed purely ministerial in nature, and no other duties shall be implied. inferred from this Agreement against Escrow Agent has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the PartiesAgent, nor shall 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 any Party has complied with any other agreement. Notwithstanding the terms authenticity or the correctness of any other agreement between fact stated therein or the Parties, the terms and conditions propriety or validity of this Agreement shall control the actions of Escrow Agentservice thereof. Escrow Agent may conclusively rely act in reliance upon any written notice, document, instruction instrument comporting with the provisions of this Agreement or request delivered by the Parties 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. Escrow Agent may act pursuant to the written advice of counsel chosen by an Authorized Representative(s), as applicable, without inquiry it with respect to any matter relating to this Agreement and without requiring substantiating evidence of (subject to Section 4(ii) hereof) shall not be liable for any kind and action taken or omitted in accordance with such advice. Escrow Agent shall not be under no duty called upon to inquire into advise any party as to selling or investigate retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder. Escrow Agent shall not be responsible for or incur any liability in connection with the validity, accuracy or content performance of any such documentinvestment made at the discretion of the Company, noticefor any other loss or gain in the Escrow Account, instruction or requestfor the sufficiency of funds in the Escrow Account to cover interest payments on the Notes. Escrow Agent shall not be liable for any action taken, suffered it takes or omitted omits to be taken by it 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 gross negligence conduct does not constitute wilful misconduct 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 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 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. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionnegligence.
Appears in 1 contract
Sources: Escrow and Disbursement Agreement (Splitrock Services Inc)
Escrow Agent. First Citizens Bank shall act as the Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in naturereceiving funds pursuant to this Agreement, and no other duties shall be implied. said Escrow Agent has no knowledge of, nor any requirement is authorized and agrees by acceptance thereof to comply with, promptly deposit and hold the terms same in escrow and conditions of any other agreement between to disburse the Parties, nor shall Escrow Agent be required same subject to determine if any Party has complied clearance thereof in accordance with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement Agreement. Failure of clearance of funds shall control not excuse performance by the actions Purchaser. In the event of Escrow Agent. breach or default of this Agreement, the Escrow Agent may conclusively rely in its sole discretion, continue to hold the monies which are the subject of this escrow until the parties mutually agree to the disbursement thereof, or until a judgment of a court of competent jurisdiction shall determine the rights of the parties thereto, or it may deposit all monies held pursuant to this Agreement with the Clerk of Court for Brunswick County and upon any written noticenotifying all parties concerned of such action, documentall liability on the part of the Escrow Agent shall fully terminate, instruction or request delivered by except to the Parties believed by it to be genuine and to have been signed by extent of an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence account of any kind monies theretofore delivered out of escrow. In the event of any suit between Purchaser and Seller wherein the Escrow Agent is made a party by virtue of acting as such Escrow Agent hereunder, or in the event of any suit where Escrow Agent interpleads the subject matter of this escrow, the Escrow Agent shall be under no duty entitled to inquire into or investigate recover reasonable attorney's fees and costs incurred, said fees and costs to be charged and assessed as court costs in favor of the validity, accuracy or content of any such document, notice, instruction or requestprevailing party. All parties agree that Escrow Agent shall not be liable for to 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 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 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. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.party of
Appears in 1 contract
Sources: Purchase and Sale Agreement (Reeves Telecom LTD Partnership)
Escrow Agent. Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be impliedhereby acknowledges receipt of the Deposit. Escrow Agent has no knowledge of, nor is acting hereunder as a depository only and is not responsible or liable in any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely manner for acting upon any written notice, document, instruction instrument or request delivered by the Parties other document reasonably believed by it to be genuine and correct and to have been signed or sent by an Authorized Representative(s), as applicable, without inquiry the proper person or persons. All of the terms and without requiring substantiating evidence of any kind conditions in connection with Escrow Agent's duties and responsibilities are contained in this Agreement and Escrow Agent is not expected or required to be familiar with the provisions of any other instrument and shall not be under no duty to inquire into charged with any responsibility or investigate liability in connection with the validity, accuracy observance or content nonobservance by anyone of the provisions of any such documentother instrument. Seller and Buyer hereby agree to indemnify Escrow Agent and hold it harmless from any and all claims, noticeliabilities, instruction losses, actions, suits or requestproceedings at law, or in equity, or any other expense, fee or charges of any character or nature, which it may incur or with which it may be threatened by reason of its acting as Escrow Agent under this Agreement, except in the case of Escrow Agent's own gross negligence, bad faith or willful misconduct; and in connection therewith, to indemnify Escrow Agent against any and all expenses, including attorney's fees and the cost of defending any action, suit or proceeding for resisting any claim. Escrow Agent shall not be liable for bound or in any action taken, suffered or omitted to be taken manner affected by it in good faith except to the extent that Escrow Agent's gross negligence or willful misconduct was the cause any notice of any direct loss to either Party. Escrow Agent may execute any of its powers and perform any of its duties hereunder directly modification, cancellation, abrogation or through affiliates or agents. In the event Escrow Agent receives instructions, claims or demands from any Party hereto which conflict with the provisions rescission of this Agreement, or if any fact or circumstance affecting or alleged to have affected the rights or liabilities of any other person, unless it has received written notice satisfactory to it, signed by all of the other parties hereto. If any two or more of the parties hereto shall be in disagreement about the interpretation of this Agreement or about the rights and obligations of, or the propriety of, any action contemplated by Escrow Agent receives conflicting instructions from the Partieshereunder, Escrow Agent shall be entitled either may, at its sole discretion, refuse to (a) refrain from taking comply with the demands of 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) party and file an action in interpleaderinterpleader to resolve the said disagreement. Escrow Agent shall have no duty to solicit any payments which may be due it, including, without limitation, the 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. Anything in this Agreement to the contrary notwithstanding, in In no event shall Escrow Agent be liable required to file an interpleader or similar type of action or to defend any action or legal proceeding filed against it, but it may do so in its sole discretion, at no expense to it, with all expenses incurred by the Escrow Agent to be paid equally by the Seller and Buyer on demand; provided, however, the prevailing party shall be entitled to recover from the other party that portion of the Escrow Agent's expenses which the prevailing party had previously paid. Escrow Agent may continue to refuse to take any action, irrespective of the time which elapses during which such dispute continues, until either the rights of the disputing claimants have been duly adjudicated and Escrow Agent shall have received a certified copy of a final judgment of a court of competent jurisdiction, or until the claimants shall have reached agreement on their differences and shall have furnished to Escrow Agent joint instructions with respect to the action to be taken. Escrow Agent may conclusively rely on any such joint instructions and shall be fully protected and indemnified in taking any action in reliance thereon. All actions taken by Escrow Agent pursuant to any court order shall be conclusively presumed to be taken in good faith. Buyer and Seller recognize and acknowledge that Escrow Agent is counsel for specialSeller, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if and Escrow Agent has been advised of the likelihood of such loss or damage agreed to serve as Escrow Agent only as a convenience to both parties. Seller and regardless of the form of actionBuyer agree that Escrow Agent may continue to represent Seller in this and any other transaction including, without limitation, representation in disputes between Buyer and Seller hereunder.
Appears in 1 contract
Sources: Real Estate Purchase Agreement (First Security Bancorp Inc /Ky/)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be inferred or implied. The Escrow Agent has no shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith or for any mistake in fact or law, or for anything that it may do or refrain from doing in connection herewith, except for its own gross negligence, willful misconduct or actions taken in bad faith (each as determined by a final judgment of a court of competent jurisdiction).
(b) The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement between agreement, instrument or document among the PartiesFounder Group, the Acquiror and the Investor, in connection herewith, including without limitation the Purchase Agreement and Earnout Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. In the event that any of the terms and provisions of any other agreement (excluding any amendment to this Agreement) between any of the PartiesParties conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and conditions provisions of this Agreement shall govern and control in all respects relating to the actions of Escrow Agent. , but in every other respect involving the parties and beneficiaries of such other agreement, the other agreement shall control.
(c) Absent gross negligence, bad faith or willful misconduct, the Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and reasonably believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, without inquiry and the proper person or persons without requiring inquiry or substantiating evidence of any kind 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 Founder Shares, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 10 and the Escrow Agent 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.
(d) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it hereunder except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s bad faith, gross negligence or willful misconduct was the primary cause of any loss to any Party. 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 except to accordance with, or in reasonable reliance upon, the extent that Escrow Agent's gross negligence advice or willful misconduct was the cause opinion of any direct loss to either Party. Escrow Agent may execute any of its powers and perform any of its duties hereunder directly such counsel, accountants or through affiliates or agentsother skilled persons. In the event that the Escrow Agent receives 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 that, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed in writing by Authorized Representatives the Founder Group and the Investor that eliminates such ambiguity or uncertainty to the satisfaction of the Parties which eliminates such conflict Escrow Agent or by a final court and non-appealable order or judgment of a court of competent jurisdiction. The Founder Group and the Investor agree to pursue any redress or recourse in connection with any such dispute without making the Escrow Agent party to the same.
(be) file an action in interpleader. The Escrow Agent shall have no duty to solicit any payments keep proper books of record and account in which may full and correct entries shall be due itmade of all release activity in the Escrow Account.
(f) The agreements set forth in this Section 4 shall survive the resignation, including, without limitationreplacement or removal of the Escrow Agent, the Funds nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness termination of any amounts deposited with it hereunder. Anything in this Agreement to and the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage payment of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionall amounts hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Double Eagle Acquisition Corp.)
Escrow Agent. In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, Escrow Agent shall have only those duties as are specifically will act honestly and expressly provided hereinin good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. Vendor and Purchaser jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify Escrow Agent, its successors and assigns from and against all loss, costs, charges, suits, demands, claims, damages and expenses which shall Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be deemed purely ministerial put unto for or by reason or on account of its acting pursuant to this Agreement or anything in natureany manner relating thereto or by reason of Escrow Agent's compliance in good faith with the terms hereof. In case proceedings should hereafter be taken in any court respecting the Proceeds, 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 no other duties shall be impliedsufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings. Escrow Agent has will have no knowledge of, nor any requirement responsibility in respect of loss of the Proceeds except the duty to comply with, exercise such care in the terms and conditions of any other agreement between safekeeping thereof as it would exercise if the Parties, nor shall Escrow Agent be required Proceeds belonged to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction act on the advice of counsel but will not be responsible for acting or request delivered by failing to act on the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence advice of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or requestcounsel. Escrow Agent will not be bound in any way by any contract between the other parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of Escrow Agent will be to hold the Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. Escrow Agent will not be required to pass upon the sufficiency of any written notice or direction required or described in this Agreement whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential for their validity, but it shall be sufficient for all purposes under this Agreement insofar as Escrow Agent is concerned that the said documents are delivered to it as herein specified by the parties executing this Agreement. In the event that the Proceeds are attached, garnished or levied upon under any court order, or if the delivery of the Proceeds is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting the Proceeds or affecting any act by Escrow Agent, Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If Escrow Agent obeys and complies with any such writs, orders, judgments or decrees, it will not be liable to any of the parties hereto or to any other person, form or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Except as herein otherwise provided, Escrow Agent is authorized and directed to disregard in its sole discretion any and all notices and warnings which may be given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgments or decrees and in case of such compliance, it shall not be liable for by reason thereof to any of the parties hereto or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated. If Escrow Agent receives any written instructions contrary to the instructions contained in this Agreement, Escrow Agent may continue to hold the Proceeds until the lawful determination of the issue between the parties hereto. If written notice of protest is made by either Purchaser or Vendor to Escrow Agent to any action takencontemplated by Escrow Agent under this Agreement, suffered and such notice sets out reasons for such protest, Escrow Agent may continue to hold the Proceeds until the right thereto is legally determined by a court of competent jurisdiction 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 Partyotherwise. Escrow Agent may execute resign as Escrow Agent by giving not less than 30 days' notice thereof to Purchaser and Vendor. Purchaser and Vendor may terminate Escrow Agent by giving not less than 30 days' notice to Escrow Agent. The resignation or termination of Escrow Agent will be effective and Escrow Agent will cease to be bound by this Agreement on the date that is 30 days after the date of receipt of the termination notice given hereunder or on such other date as Escrow Agent, Purchaser and Vendor may agree upon. All indemnities granted to Escrow Agent herein will survive the termination of this Agreement or the termination or resignation of Escrow Agent. Notwithstanding anything herein to the contrary, Escrow Agent may act upon any written instructions given jointly by Vendor and Purchaser. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between Purchaser and Vendor with respect to the Proceeds, this Agreement, the Convertible Debenture or the Private Placement Subscription Agreement, Escrow Agent may in its powers sole discretion deliver and perform interplead the Proceeds into court and such delivery and interpleading will be an effective discharge to Escrow Agent. It is understood that in addition to acting as Escrow Agent hereunder, Escrow Agent is also acting as solicitor for the Purchaser in this transaction and the parties have requested that Escrow Agent act in this capacity. Vendor will each the compensation of Escrow Agent and will reimburse Escrow Agent for any and all reasonable expenses, disbursements and advances made by Escrow Agent in the performance of its duties hereunder directly or through affiliates or agentshereunder, including reasonable fees, expenses and disbursements incurred by its counsel. In the event The obligation of Escrow Agent receives instructions, claims to deliver the Proceeds to Purchaser or demands from any Party hereto which conflict with Vendor pursuant to the provisions terms of this Agreement, or if Agreement are subject to the prior payment to 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 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 all its costs and expenses herein including reasonable compensation for acting hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. The Escrow Agent shall have undertakes to perform only those such duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, set forth herein and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation, the Purchase Agreement (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any Party Person has complied with any other such agreement. Notwithstanding , nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreement, even though reference thereto may be made in this Escrow Agreement. In the event of any conflict between the terms and provisions of this Escrow Agreement, 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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction instruction, request or request delivered by other instrument furnished to it hereunder, not only as to its due execution, validity and effectiveness, but also as to the Parties believed by it truth and accuracy of any information contained therein, which the Escrow Agent reasonably believes to be genuine and to have been signed or presented by an Authorized Representative(s), as applicablethe proper party or parties, without inquiry and without requiring substantiating evidence of any kind 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 action taken, suffered party of their respective obligations under the Underlying Agreement nor shall Escrow Agent be responsible or omitted to be taken by it liable in good faith except to any manner for the extent that Escrow Agent's gross negligence or willful misconduct was the cause failure of any direct loss party to either Party. Escrow Agent may execute honor any of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the event Escrow Agent receives instructions, claims or demands from any Party hereto which conflict with the provisions of this Escrow 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. The Escrow Agent shall have no duty to solicit any payments which may be due itit or the Tax Escrow, including, without limitation, the Funds Escrow Amount 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 by it except to the 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 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 take any legal action or 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 which the Escrow Agent determines, in its sole 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 Tax Escrow or Escrow Agent’s proper actions with respect to its obligations hereunder, 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 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 other appropriate method) any Competent Court, for instructions with respect to such dispute or uncertainty, and to the extent required or permitted by law, pay into such court, for holding and disposition in accordance with the instructions of such Competent Court, the entire Tax Escrow. Escrow Agent shall have no liability to any Party or any other individual or entity with respect to any suspension of performance or disbursement into a 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. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. 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 have only be limited to those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial set forth in naturethis Agreement, and no other duties shall be implied. the Escrow Agent has no knowledge ofshall not be subject to, nor obligated to recognize, any requirement to comply with, the terms and conditions provision of any other agreement between between, or direction or instruction of, any or all of the Partiesparties 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, nor 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 be required is authorized, in its sole discretion, to determine if any Party has complied rely upon and comply with any other agreementsuch order, writ, judgment or decree which it is advised by legal counsel is binding upon it. Notwithstanding If the terms 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 agreement between the Partiesperson by reason of such compliance even though such order, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent writ, judgment or decree may conclusively rely upon any written noticebe subsequently reversed, documentmodified, instruction annulled, set aside or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. vacated.
(c) The Escrow Agent shall not be liable for any action taken, suffered act taken or omitted to be under this Agreement if taken or omitted by it in good faith except and in the exercise of reasonable care under the circumstances. The Escrow Agent shall also be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to the extent that be genuine (including facsimiles thereof).
(d) The Escrow Agent's , and any successor Escrow Agent, may resign at any time as Escrow Agent hereunder by giving at least ten (10) days’ written notice to Concho Resources and the Concho Holdings Stockholders. Upon such resignation and the appointment of a successor Escrow Agent, the resigning Escrow Agent shall be absolved from any and all liability in connection with the exercise of its powers and duties as Escrow Agent hereunder except for liability arising in connection with its gross negligence or willful misconduct was misconduct. Upon their receipt of notice of resignation from the cause of any direct loss Escrow Agent, Concho Resources and the Concho Holdings Stockholders shall use reasonable efforts jointly to either Party. designate a successor Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agentsAgent. In the event Concho Resources and the Concho Holdings Stockholders do not agree upon a successor Escrow Agent receives instructionswithin ten (10) days after the receipt of such notice, the Escrow Agent so resigning may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent or other appropriate relief and any such resulting appointment shall be binding upon all parties hereto. By mutual agreement, the Concho Holdings Stockholders shall have the right at any time, upon not less than five (5) days’ written notice given to the Escrow Agent, to terminate their appointment of the Escrow Agent, or successor Escrow Agent, as Escrow Agent. The Escrow Agent 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 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 inconsistent claims or demands from any Party hereto which conflict being made in connection with the provisions subject matter of this Agreement, or if in the event that the Escrow Agent receives conflicting instructions from is in doubt as to what action it should take hereunder, the PartiesEscrow Agent may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder so long as such disagreement continues or such 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 failure or refusal to act, and the Escrow Agent shall be entitled either to (a) continue to refrain from taking any action acting until it (i) the rights of all parties have been fully and finally adjudicated by a court of competent jurisdiction, or (ii) all differences shall be given a joint written direction executed have been settled and all doubt resolved by Authorized Representatives agreement among all of the Parties which eliminates such conflict or by a final court order or (b) file an action in interpleader. interested persons, and the Escrow Agent shall have no duty been notified thereof in writing signed by all such persons. In addition to solicit any payments which may be due itthe foregoing rights, including, without limitation, in the Funds nor shall event the Escrow Agent have has any duty 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 obligation the United States District Court of the Northern District of Texas for instructions or to confirm interplead the funds or verify assets so held (including the accuracy Deposit Shares and any investments) into such 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 correctness registered mail, return receipt requested, to the address set forth for notice in Section 9(a) of any amounts deposited with it hereunder. Anything in this Agreement to the contrary notwithstandingshall constitute adequate service.
(f) CONCHO RESOURCES AND THE CONCHO HOLDINGS STOCKHOLDERS HEREBY AGREE, in no event shall Escrow Agent be liable for specialSEVERALLY AND JOINTLY, incidentalTO INDEMNIFY ESCROW AGENT FOR, punitiveAND TO HOLD ESCROW AGENT HARMLESS AGAINST, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits)ANY LOSS, even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionLIABILITY 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. The Escrow Agent shall have undertakes to perform only those such duties as are specifically and expressly provided set forth herein, which shall be deemed purely ministerial in nature, and no other duties duties, including but not limited to any fiduciary duties, shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Merger Agreement, nor shall the Escrow Agent be required to determine if any Party Person has complied with any other agreementsuch 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 shall will control the actions of Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction Joint Release Instruction or request delivered by the Parties Final Determination furnished to it hereunder and believed by it to be genuine and to have been signed and presented by an Authorized Representative(s)authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, as applicable, without inquiry the Parties shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A-1 and without requiring substantiating evidence of any kind 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 to 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 or Final Determination. 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 ’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 To the event Escrow Agent receives instructionsextent practicable, 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 agree to pursue any redress or by a final court order or (b) file an action recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, incidentalindirect, punitive, indirect incidental or consequential loss losses or damage 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 loss losses or damage damages and regardless of the form of action.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the PartiesCompany and the Investors, in connection herewith, if any, including without limitation the Distribution Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. 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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the Company or the Distributor without inquiry and without requiring substantiating evidence of any kind 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 Escrow Account, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 11 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 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 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. The Escrow Agent shall have no duty to solicit any payments which may be due itit or the Escrow Account, including, without limitation, the Funds 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 the Company or the Distributor hereto which, in its opinion, conflict [Signature Page to Escrow Agreement] 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 given a direction in writing by the Company or the Distributor which eliminates such ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final and non-appealable order or judgment of a court of competent jurisdiction. The Company and the Distributor each agree to pursue any redress or recourse in connection with any dispute 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 special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Sources: Escrow Agreement
Escrow Agent. (a) The duties and responsibilities of the Escrow Agent shall have only be limited to those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial set forth in naturethis Escrow Agreement, and no other duties implied covenants or obligations shall be implied. read into this Escrow Agreement against the Escrow Agent.
(b) If, pursuant to Section 3.2 hereof or otherwise, all or any part of the Escrow Fund is at any time attached, garnished, or levied upon by any court order, or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, writ, judgment or decree shall be made or entered by a court affecting such property or any part thereof, then and in any of such events the Escrow Agent has no knowledge ofis authorized, nor in its sole discretion, to rely upon and comply with any requirement such order, writ, judgment or decree, and it shall not be liable to comply withthe Company or any Participant by reason of such compliance even though such order, the terms and conditions of any other agreement between the Partieswrit, nor shall judgment or decree subsequently may be reversed, modified, annulled, set aside or vacated.
(c) The Escrow Agent shall maintain such books, records and accounts as may be required necessary for the proper administration of the Escrow Fund, including, without limitation, as provided in Section 2.1 hereof, and shall render to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between Company, on or prior to each January 31 until the Parties, the terms and conditions termination of this Escrow Agreement shall control (and on the actions date of such termination), an accounting with respect to the Escrow Agent. Fund as of the end of the then most recent calendar year (and as of the date of such termination).
(d) The Escrow Agent may conclusively rely shall not be liable for any act taken or omitted to be taken hereunder if taken or omitted to be taken by it in good faith. The Escrow Agent shall also be fully protected in relying upon any written notice, document, instruction or request delivered by the Parties believed by notice given hereunder which it in good faith believes to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry executed and without requiring substantiating evidence of any kind and delivered in accordance with this Escrow Agreement.
(e) The Escrow Agent shall may consult with legal counsel to be under no duty to inquire into or investigate selected by it, and the validity, accuracy or content of any such document, notice, instruction or request. Escrow Agent shall not be liable for any action taken, taken or suffered or omitted to be taken by it in good faith except to accordance with the extent that Escrow Agent's gross negligence or willful misconduct was the cause advice of any direct loss to either Party. such counsel.
(f) The Escrow Agent may execute any of shall be reimbursed by the Company for its powers and perform any reasonable expenses incurred in connection with the performance of its duties hereunder directly and shall be paid reasonable fees for the performance of such duties in the manner provided by Section 4.1(g).
(g) The Company agrees to indemnify and hold harmless the Escrow Agent from and against any and all damages, losses, claims or through affiliates expenses as incurred (including expenses of investigation and fees and disbursements of counsel to the Escrow Agent) arising out of or agentsin connection with the performance by the Escrow Agent of its duties hereunder. Any amount payable to the Escrow Agent under Section 4.1(f) or this Section 4.1(g) shall be paid by the Company promptly upon notice by the Escrow Agent to the Company. If such payment is not made within 60 days of the Company’s receipt of such notice, then the Escrow Agent may pay such fees from the Escrow Fund. If it is necessary to use the cash surrender value of any Life Insurance Policies for this purpose, the Escrow Agent shall use the 10 day notice procedure set forth in Section 2.2
(a) prior to cancellation of any policy. In the event payment is made hereunder to the 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 PartiesEscrow Fund, the 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 promptly notify the Company in writing of the Parties which eliminates amount of such conflict payment. The Company agrees that, upon receipt of such notice, it will deliver to the Escrow Fund an amount of money or by a final court order property equal to any payments made from the Escrow Fund to the Escrow Agent pursuant to Section 4.1(f) or this Section 4.1(g). The failure of the Company to transfer any such amount shall not in any way impair the Escrow Agent’s right to indemnification, reimbursement and payment pursuant to Section 4.1(f) or this Section 4.1(g).
(bh) file an action in interpleader. Notwithstanding any other provisions of the Escrow Agreement, the Escrow Agent shall have no duty not be required to solicit pay any payments which may be due itbenefits, includingpremiums on insurance policies or expenses from funds other than the Escrow Fund. If there are not sufficient funds in the Escrow Fund to meet any one or more of the foregoing obligations that are due, without limitation, the Funds nor shall then the Escrow Agent have any duty or obligation shall notify the Company of the amount needed to confirm or verify meet such obligations. Upon receipt of the accuracy or correctness of any amounts deposited with it hereunder. Anything in this Agreement to funds from the contrary notwithstandingCompany, in no event shall and not before then, the Escrow Agent be liable shall pay for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionobligations.
Appears in 1 contract
Sources: Escrow Agreement
Escrow Agent. Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. Escrow Agent has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. Escrow Agent shall not be 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 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 itit or the Fund, including, without limitation, the Funds 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. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Sources: Subscription Escrow Agreement (Omnitek Engineering Corp)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between Purchaser and any other person or entity, in connection herewith, if any, including without limitation the Parties, Underlying Agreement or nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. 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 PartiesPurchaser and any other person or entity, the terms and conditions of this Agreement shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the applicable person without inquiry and without requiring substantiating evidence of any kind 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 Escrow Shares, 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 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 Shares nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder.
(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 ’s gross negligence or willful misconduct was the primary cause of any direct loss to either Partyloss. 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. In the event that the Escrow Agent receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or uncertainty to the satisfaction of the Escrow Agent or by a final court and non-appealable 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 Funds nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness judgment of any amounts deposited with it hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage a court of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actioncompetent jurisdiction.
Appears in 1 contract
Sources: Escrow Agreement (BiomX Inc.)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Purchase Agreement and any agreements entered into in connection therewith (collectively, the “Underlying Agreements”), nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding Underlying Agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of any Underlying Agreements, even though reference thereto may be made in this Agreement. 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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and reasonably believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind 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 Fund, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 11 below and the Escrow Agent 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 to it or the Fund, 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 in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's ’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 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 receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed in writing by Authorized Representatives of the Parties which eliminates such conflict ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final court and non-appealable order or (b) file an action judgment of a court of competent jurisdiction. The Parties agree to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Sources: Membership Purchase Agreement (Agfeed Industries, Inc)
Escrow Agent. Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. Escrow Agent has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. (a) The Escrow Agent shall not be liable for any action taken, suffered taken or omitted by it, or any action suffered by it to be taken by it or omitted, in good faith except and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the extent that Escrow Agent's gross negligence or willful misconduct was the cause truth and acceptability of any direct loss to either Party. information therein contained) which is believed by the Escrow Agent may execute any of its powers to be genuine and perform any of its duties hereunder directly to be signed or through affiliates presented by the proper person or agentspersons. In the event 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, The Escrow Agent shall not be entitled either bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by a writing delivered to (a) refrain from taking any action until the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall be have given a joint its prior written direction executed by Authorized Representatives of the Parties which eliminates such conflict or by a final court order or consent thereto.
(b) file an action in interpleader. The Escrow Agent shall have no duty to solicit any payments which may not be due it, including, without limitationresponsible for the sufficiency or accuracy, the Funds form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Escrow Agent have be responsible or liable in any duty respect on account of the identity, authority or obligation rights of the persons executing or delivering or purporting to confirm execute or verify deliver any document or property paid or delivered by the accuracy or correctness Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable for any loss which may be incurred by reason of any amounts deposited Subscription Funds it holds hereunder provided that it shall comply with it hereunder. Anything the investment instruction set forth in this Agreement Section 4 hereof.
(c) The Escrow Agent shall have the right to assume in the absence of written notice to the contrary notwithstandingfrom the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent does not exist or has not occurred, without incurring liability for any action taken or omitted, in no event shall good faith and in the exercise of its own best judgment, in reliance upon such assumption.
(d) The Escrow Agent shall be liable for specialindemnified and held harmless by the Company, incidentalfrom and against any expenses, punitiveincluding counsel fees and disbursements, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if suffered by the Escrow Agent has been advised in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way directly or indirectly, arises out of or is related to this Agreement, the services of the likelihood of Escrow Agent hereunder, the monies or other property held by it hereunder or any such loss expense or damage and regardless of loss. Promptly after the form of action.receipt by the
Appears in 1 contract
Sources: Escrow Agreement (Excelsior Private Equity Fund Ii Inc)
Escrow Agent. In performing Escrow Agent’s duties hereunder, Escrow Agent shall have only those duties as are specifically and expressly provided hereinnot incur any liability to any party for any damages, which shall be deemed purely ministerial in naturelosses or expenses, except for willful default or breach of trust, and no other duties shall be implied. Escrow Agent has no knowledge ofshall accordingly not incur any such liability with respect to any action taken or omitted in reliance upon any written instrument, nor any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon including any written notice, documentelection, instruction demand, request or request delivered by the Parties believed by it response thereto contemplated, permitted or required to be genuine delivered under this Agreement (collectively, a “Notice”), not only as to the due execution and the validity and effectiveness of the provisions of the Notice but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by an Authorized Representative(s), as applicable, without inquiry a proper person or persons and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. Escrow Agent shall not be 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 receives instructions, claims or demands from any Party hereto which conflict conform 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 is hereby authorized to solicit any payments which may be due itrefuse to act except upon the written consent of both Seller and Purchaser. As to their own acts and omissions, Seller and Purchaser each indemnify and hold harmless (“Indemnify”) Escrow Agent from and against all claims, damages, liabilities and expenses, including, without limitation, costs of investigation and attorney’s fees, disbursements and expenses at both the Funds nor shall trial and appellate levels (the “Indemnity”), which may be imposed upon 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 incurred by Escrow Agent in connection with the performance of the duties of Escrow Agent hereunder; provided however, that in the event that Escrow Agent shall willfully default or be grossly negligent in the performance of Escrow Agent’s duties under this Agreement, then in such event Escrow Agent shall be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of all such loss or damage claims and regardless of the form of actiondamages.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Excelsior Lasalle Property Fund Inc)
Escrow Agent. (a) Except as expressly contemplated by this Agreement or by joint written instructions from the Company and the negotiating committee for the holders of the LLC Interests (the "Pooled Preferred Negotiating Committee") and authorized by the holders of 66_% of each of the BCEF LLC Interests and the Market Partners LLC Interests, the Escrow Agent shall have only those duties as are specifically and expressly provided hereinnot sell, transfer, disburse or otherwise dispose of in any manner all or any portion of the Escrow Fund, except pursuant to an order, which shall be deemed purely ministerial in naturefinal and non-appeable, of a court of competent jurisdiction; provided, however, that the Escrow Agent shall not have any duties to determine whether the holders of 66 2/3% of each of the BCEF LLC Interests and the Market Partners LLC Interests have authorized such joint instructions, and no other the Escrow Agent is entitled to rely on the execution of such instructions by the Pooled Preferred Negotiating Committee as affirmative proof that such authorization by such holders has been duly solicited and received.
(b) The duties and obligations of the Escrow Agent shall be implied. determined solely by this Agreement, and the Escrow Agent has no knowledge of, nor any requirement to comply withshall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement.
(c) In the performance of its duties hereunder, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent shall be required entitled to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction instrument or request delivered by the Parties signature believed by it in good faith to be genuine and to have been signed by any party hereto or an Authorized Representative(s)authorized officer or agent thereof, as applicable, without inquiry and without requiring substantiating evidence shall not be required to investigate the truth or accuracy of any kind and statement contained in any such document or instrument. The Escrow Agent shall be under no duty may assume that any person purporting to inquire into or investigate give any notice in accordance with the validity, accuracy or content provisions of any such document, notice, instruction or request. this Agreement has been duly authorized to do so.
(d) The Escrow Agent shall not be liable for any error of judgment, or any action taken, suffered or omitted to be taken, hereunder except in the case of its gross negligence, bad faith or willful misconduct. The Escrow Agent may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder 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 receives instructions, claims or demands from any Party hereto which conflict in accordance with the provisions opinion of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent shall be entitled either to such counsel.
(ae) 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. The Escrow Agent shall have no duty as to solicit the collection or protection of the Escrow Fund or income thereon, nor as to the preservation of any payments which may be due itrights pertaining thereto, beyond the safe custody of any such funds actually in its possession.
(f) The Company shall reimburse and indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys' fees, incurred without gross negligence, bad faith or willful misconduct on the Funds nor shall part of the Escrow Agent arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement.
(g) The Escrow Agent may at any time resign by giving twenty business days prior written notice of resignation to the Company. The Company, BCEF and Market Partners may at any time jointly remove the Escrow Agent by giving ten Business Days' written notice signed by each of them to the Escrow Agent. If the Escrow Agent shall resign or be removed, a successor Escrow Agent, which shall be a bank or trust company having its principal executive offices in New York, New York or Chicago, Illinois and assets in excess of $100 million, shall be appointed by the Company by written instrument executed by the Company, BCEF and Market Partners and delivered to the Escrow Agent and to such successor Escrow Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent shall become effective and such successor Escrow Agent, without any further act, deed or conveyance, shall become vested with all right, title and interest to all cash and property held hereunder of such predecessor Escrow Agent, and such predecessor Escrow Agent shall, on the written request of the Company, BCEF or Market Partners or the successor Escrow Agent, execute and deliver to such successor Escrow Agent all the right, title and interest hereunder in and to the Escrow Funds of such predecessor Escrow Agent and all other rights hereunder of such predecessor Escrow Agent. If no successor Escrow Agent shall have any duty or obligation been appointed within twenty Business Days of a notice of resignation by the Escrow Agent, the Escrow Agent's sole responsibility shall thereafter be to confirm or verify hold the accuracy or correctness Escrow Funds until the earlier of any amounts deposited with it hereunder. Anything in its receipt of designation of a successor Escrow Agent, a joint written instruction by the Company, BCEF and Market Partners and termination of this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionaccordance with its terms.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Dealer Manager Agreement (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. 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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind and 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 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 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 attorneys and shall be liable only for its gross negligence or agentswillful 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 receives 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 which, in its opinion, conflict with any of the provisions of this Escrow Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed in writing by Authorized Representatives of the Parties which eliminates such conflict ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final court and non-appealable order or (b) file an action judgment of a court of competent jurisdiction. The Parties agree to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. 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. (a) The Escrow Agent shall have only those duties as are specifically contemplated and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. Subject to Section 31(a) and limited to the Escrow Agent’s knowledge of the capitalized terms on the Closing Date, the Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including the SPA, nor shall the Escrow Agent be required to determine if any Party Person has complied with any other agreement. Notwithstanding such agreements, nor shall any additional rights or obligations of the Escrow Agent be inferred from the terms of any other agreement between the Partiessuch agreements, the terms and conditions of even though reference thereto may be made in this Agreement shall control the actions of Escrow AgentAgreement. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind (it being acknowledged that if evidence of such written notice, document, instruction or request not being genuine is apparent, in the sole discretion of the Escrow Agent, on the face thereof the Escrow Agent shall present such written notice, document, instruction or request to the representatives of the applicable Party set forth in Schedule 1 and await further instruction prior to taking any action hereunder). The Escrow Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting upon any document, notice, instruction or request setting forth, claiming, containing, objecting to, or related to the transfer or distribution from the Escrow Fund, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 17 and the Escrow Agent has been able to satisfy any applicable security procedures as may be required hereunder and as set forth in Section 17. The Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, notice or instruction or requestrequest or any calculation or adjustments contemplated by this Agreement or the SPA unless it is apparent, in the sole discretion of the Escrow Agent, on its face that such document, notice or instruction or calculation or adjustment is faulty, incomplete or not genuine. The Escrow Agent shall have no duty to solicit any payments which may be due under the terms of this Agreement or any other agreement, instrument or document between the Parties or have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder (except for the initial deposit of the Indemnity Escrow Shares made pursuant Section 2(a) and in connection with the satisfaction of the Escrow Agent’s obligations set forth in Section 14).
(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 ’s or any of its Affiliates’ criminal acts, fraud, gross negligence negligence, bad faith or willful misconduct (each as determined by a final judgment by a court of competent jurisdiction) 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 Affiliates or agentsthird-party agents that are experienced in matters for which they are engaged; provided, however, that subject to the limitations on liability contained herein, the Escrow Agent shall be as fully responsible to the Parties for the acts and omissions of any such Affiliate or third-party agents as it is for its own acts and omissions hereunder and shall ensure such Affiliates and third-party agents are bound by the terms of Section 15 as if each was a party hereto. The Escrow Agent may consult with legal counsel, accountants and other professional consultants to be selected and retained by it. In the event that the Escrow Agent receives shall be uncertain or believes there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which which, in its opinion, conflict with any of 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 and its sole obligation (other than informing the Parties of any such conflict) shall be to keep safely all property held in the Escrow Account until it shall be given a joint written direction executed in writing by Authorized Representatives of the Parties which eliminates such conflict ambiguity or uncertainty to the reasonable satisfaction of the Escrow Agent or by a final court and non-appealable order or (b) file an action judgment issued by the Chosen Courts in interpleaderaccordance with the terms and conditions of Section 26. Escrow Agent shall have no duty to solicit any payments which may be due it, including, without limitationTo the extent possible under applicable Law, the Funds nor Parties shall pursue any redress or recourse in connection with any dispute between them under or related to this Agreement without making 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 a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
Appears in 1 contract
Sources: Stock Purchase Agreement (Korn Ferry International)
Escrow Agent. The parties hereto agree that Escrow Agent’s only obligations hereunder shall be to hold the Escrowed Funds as Escrow Agent hereunder and to disburse said funds pursuant to the terms of this Agreement. Tenant and Landlord acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall not be deemed purely ministerial in natureto be the agent of any of the parties hereto, and no other duties shall be implied. Escrow Agent has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. that Escrow Agent shall not be liable to any of the parties hereto for any action takenact or omission on its part unless taken or suffered in bad faith, 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 receives instructions, claims or demands from any Party hereto which conflict with the provisions disregard of this Agreement, 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 interpleaderinvolving negligence. Escrow Agent shall have no duty responsibility for, and shall not be concerned with, any agreements between the parties hereto, except as specifically provided in this Agreement. Escrow Agent may interplead any matter of this escrow at any time in regard to solicit any payments controversy among the parties which may cannot be due itresolved in a reasonable time among the parties, includingas to appropriate interpretation of these instructions or distribution of funds in said escrow account which cannot be resolved in a reasonable time, without limitationor in regard to any suit on this escrow brought against Escrow Agent from any source. The parties hereto shall indemnify Escrow Agent and hold Escrow Agent harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the holding of the Escrowed Funds excepting, however, the Funds nor shall the breach, negligence or willful misconduct of Escrow Agent have any duty or obligation to confirm or verify in the accuracy or correctness performance of any amounts deposited with it its duties hereunder. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Sources: Lease (Polycom Inc)
Escrow Agent. Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. Escrow Agent has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. (a) The Escrow Agent shall not be liable for any action taken, suffered taken or omitted to be taken by it in good faith faith. In no event shall the Escrow Agent be liable or responsible except to the extent that Escrow Agent's for its own gross negligence or willful misconduct was the cause of any direct loss to either Party. misconduct.
(b) The Escrow Agent may execute consult with legal counsel in the event of any dispute or question as to the construction of any of its powers and perform any of its duties hereunder directly or through affiliates or agents. In the event Escrow Agent receives instructions, claims or demands from any Party hereto which conflict with the provisions of this Agreement or the Escrow Agent's duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected in acting in accordance with the advice of such counsel.
(c) In the event of any disagreement between any of the parties to this Agreement, or if between any of them and any third party, resulting in adverse claims or demands being made in connection with the matters covered by this Agreement, or in the event that the Escrow Agent, in good faith, be in doubt as to what action it should take hereunder, the Escrow Agent receives conflicting instructions from may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in any such event, the PartiesEscrow Agent shall not be or become liable in any way or to any party for its failure or refusal to act, and the Escrow Agent shall be entitled either to (a) continue to refrain from taking any action acting until it the earlier to occur of: (i) the rights of all interested parties shall be given have been fully and finally adjudicated by a joint written direction executed court of competent jurisdiction; or (ii) all differences shall have been adjudged and all doubt resolved by Authorized Representatives agreement among all of the Parties which eliminates such conflict or by a final court order or (b) file an action in interpleader. interested parties, and the Escrow Agent shall have no duty to solicit any payments which may be due itbeen notified thereof in writing signed by all such parties. Notwithstanding the preceding sentence, including, without limitation, the Funds nor shall the Escrow Agent have any duty may, in its sole discretion, obey the order, judgment, decree or obligation to confirm or verify the accuracy or correctness levy of any amounts deposited court, whether with it hereunder. Anything in this Agreement to or without jurisdiction, or of an agency of the contrary notwithstandingUnited States or any political subdivision thereof, and the Escrow Agent is hereby authorized, in no event shall its sole discretion, to comply with and obey any such orders, judgments, decrees or levies. The rights of the Escrow Agent be liable for special, incidental, punitive, indirect under this Section 15 are cumulative of all other rights which it may have by law or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionotherwise.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. Such duties shall include the following: (i) safeguarding and treating the Escrow Amount as trust funds in accordance with the provisions of this Agreement and not as the property of Purchaser, and holding the Escrow Amount in separate accounts, apart from any other funds or accounts of the Escrow Agent has no or any other person and (ii) holding and disposing of the Escrow Amount only in accordance with the provisions of this Agreement. The duties of the Escrow Agent with respect to the Escrow Amount may be altered, amended, modified or revoked only by a writing signed by the Parties and the Escrow Agent. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including, without limitation, the Merger Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with the Merger Agreement, nor shall any other agreement. Notwithstanding additional obligations of the Escrow Agent be inferred from the terms of the Merger Agreement, even though reference thereto may be made in this Agreement. 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 shall control the actions of Escrow Agentcontrol. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind 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 Escrow Amount, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 12 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 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 it or the Escrow Amount, 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 ’s gross negligence or willful misconduct was the primary cause of any direct loss to either any Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agentsagents that have been approved in writing in advance by Purchaser and the Stockholders’ Representative. The Escrow Agent may consult with counsel 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, an opinion of any such counsel. In the event that the Escrow Agent receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed in writing by Authorized Representatives of the Parties which eliminates such conflict ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final court and non-appealable 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 Funds nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness judgment of any amounts deposited with it hereundera court of competent jurisdiction. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Sources: Merger Agreement (Groupon, Inc.)
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the PartiesCompany, the Sponsor, TipTop and any other person or entity, in connection herewith, including the Merger Agreement or the Assurance Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement.
(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 shall control the actions of Escrow Agent. control.
(c) The Escrow Agent may conclusively rely upon upon, and shall not be liable for acting or refraining from acting upon, any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s)the Company, as applicable, TipTop or the Sponsor without inquiry and without requiring substantiating evidence of any kind 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 Escrow Shares, 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. 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 ’s fraud, gross negligence or willful misconduct was the primary cause of any direct loss to either Partythe 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 receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either to (a) refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or by uncertainty to the satisfaction of the Escrow Agent, until an Order or judgement of a final court order of competent jurisdiction agrees to pursue any redress or (b) file an action recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making 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 a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Purchase Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding 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. 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 shall control the actions for purposes of Escrow Agentthis Agreement. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind 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 Fund, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 11 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 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 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. The Escrow Agent shall have no duty to solicit any payments which may be due itit or the Fund, including, without limitation, the Funds 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 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 given a direction in writing by the Parties which eliminates such ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final and non-appealable order or judgment of a court of competent jurisdiction. The Parties agree to pursue any redress or recourse in connection with any dispute between the 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 for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent undertakes to perform only those duties expressly set forth herein and no duties shall be implied.
(b) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, no liability under and no other duties shall be implied. Escrow Agent has no knowledge of, nor any requirement duty to comply with, inquire as to the terms and conditions provisions of any agreement of the Affiliate and/or the Secured Party other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of than this Agreement shall control the actions of Escrow Agent. Agreement.
(c) The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and the proper party or 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 not be liable for any action taken, suffered taken or omitted to be taken by it in good faith except to the extent that a court of competent jurisdiction determines that the Escrow Agent's ’s gross negligence or willful misconduct was the primary cause of any direct loss to either Party. the Affiliate.
(f) The Escrow Agent may execute any consult with legal counsel of its powers choosing as to any matter relating to this Agreement and perform any of its duties hereunder directly or through affiliates or agents. In the event 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 not incur any liability in acting in good faith in accordance with advice from such counsel.
(ag) 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 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. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profitsprofits 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 Escrow Agent shall be uncertain as to its duties or rights hereunder or receive instructions, claims or demands 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, other than keep safely the Escrow Shares, until it shall be jointly directed otherwise by the parties hereto or by a determination by a court of competent jurisdiction which order or decree is not subject to appeal.
(j) The Escrow Agent shall not be obligated to institute legal proceedings of any kind and shall not be required to defend any legal proceeding instituted against it or in respect to the Escrow Property.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent hereby agrees and covenants with the Parties that it shall perform all of its obligations under this Agreement and shall not deliver custody or possession of any of the Escrow Shares to anyone, except pursuant to the express terms of this Agreement or as otherwise required by applicable law. The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document by or between any other person or entity, in connection herewith, if any, including without limitation the Parties, Underlying Agreement or nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding such agreements, nor shall any additional obligation of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement.
(b) In the event of any conflict between the terms and provisions of this Agreement, those of the Underlying Agreements, or any other agreement by or between the Partiesany other person or entity, the terms and conditions of this Agreement shall control the actions of Escrow Agent. control.
(c) The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the without inquiry and without requiring substantiating evidence of any kind 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 Escrow Shares, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 2 hereof and the Escrow Agent 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 ’s gross negligence or willful misconduct was the primary cause of any direct loss to either Partyor the 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. In the event that the Escrow Agent receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either to (a) refrain from taking any action and its sole obligation shall be to keep safely all the property held in escrow until it shall be given a joint written direction executed by Authorized Representatives of the Parties in writing which eliminates such conflict ambiguity or uncertainty to the satisfaction of the Escrow Agent or by a final court and non-appealable order or (b) file an action judgement of a court of competent jurisdiction agrees to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making 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 a party to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionsame.
Appears in 1 contract
Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation, the Underlying Agreement, nor shall the Escrow Agent be required to determine if any Party person or entity has complied with any other agreement. Notwithstanding Underlying Agreement, nor shall any additional obligations of the Escrow Agent be inferred from the terms of any Underlying Agreement, even though reference thereto may be made in this Agreement. 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 shall control as against the actions of Escrow Agent. The Escrow Agent may conclusively rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request delivered by the Parties furnished to it hereunder and believed by it to be genuine and to have been signed or presented by an Authorized Representative(s), as applicable, the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind 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 Fund, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 11 below and the Escrow Agent 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 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 in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent's ’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 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 receives 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 which, in its opinion, conflict with any of the provisions of this Agreement, or if Escrow Agent receives conflicting instructions from the Parties, Escrow Agent it shall be entitled either 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 given a joint written direction executed in writing by Authorized Representatives of the Parties which eliminates such conflict ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final court and non-appealable order or (b) file an action judgment of a court of competent jurisdiction. The Parties agree to pursue any redress or recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Walter Investment Management Corp)
Escrow Agent. Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. Escrow Agent has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it to be genuine and to have been signed by an Authorized Representative(s), as applicable, without inquiry and without requiring substantiating evidence of any kind and Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that Escrow Agent's ’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 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 itit or the Fund, including, without limitation, the Funds 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. Anything in this Agreement to the contrary notwithstanding, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Sources: Asset Acquisition Agreement (Mesa Laboratories Inc /Co)
Escrow Agent. In performing its duties hereunder or upon the claimed failure to perform its duties hereunder, the Escrow Agent shall have no liability except for the Escrow Agent’s willful misconduct or gross negligence. The Escrow Agent’s sole responsibility shall be for the holding, administering and disbursing the Escrow Fund in accordance with the terms hereof. The Escrow Agent shall have no implied duties or obligations and shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein or in any notice given to it hereunder in accordance with Section 17. The Escrow Agent shall be entitled to rely upon, and shall be protected in acting upon, any request, instructions, statement or other instrument, not only those duties as are specifically to its due execution, validity and expressly provided hereineffectiveness, but also as to the truth and accuracy of any information contained therein, which shall be deemed purely ministerial in nature, and no other duties shall be implied. the Escrow Agent has no knowledge of, nor any requirement to comply with, the terms and conditions of any other agreement between the Parties, nor shall Escrow Agent be required to determine if any Party has complied with any other agreement. Notwithstanding the terms of any other agreement between the Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. Escrow Agent may conclusively rely upon any written notice, document, instruction or request delivered by the Parties believed by it in good faith believe to be genuine and genuine, to have been signed or presented by an Authorized Representative(s), as applicable, without inquiry the person or parties purporting to sign the same and without requiring substantiating evidence of any kind and to conform to the provisions hereof. In no event shall the Escrow Agent shall be under no duty to inquire into liable for incidental, indirect, special, consequential or investigate the validity, accuracy or content of any such document, notice, instruction or requestpunitive damages. The Escrow Agent shall not be liable for obligated to take any legal action taken, suffered or omitted to be taken by it commence any proceeding 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 receives instructions, claims or demands from any Party hereto which conflict connection with the provisions of Escrow Fund, any account in which the Escrow Fund is deposited or this Agreement, or if to appear in, prosecute or defend any such legal action or proceedings. The Escrow Agent receives conflicting instructions may consult legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of its duties hereunder, and shall incur no liability and shall be fully protected from any liability whatsoever in acting in accordance with the Partiesadvice of such counsel. Except as otherwise provided in Section 11, REIT and WAS I shall jointly and severally agree to pay, upon demand, the reasonable fees and expenses of any such counsel; provided, however, that solely between themselves REIT and WAS I agree that such fees and expenses shall be borne equally between REIT and WAS I. The Escrow Agent shall not be entitled either required to (a) refrain from taking any action until it shall be given a joint written direction executed by Authorized Representatives take notice of the Parties which eliminates such conflict or by a final court order or (b) file an action in interpleader. Escrow Agent and shall have no duty to solicit obligations or responsibilities in connection with the Merger Agreement or the Pledge Agreement, or any payments which may be due it, including, without limitation, the Funds nor shall the Escrow Agent have other agreement between any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited with it hereunder. Anything in this Agreement other parties to the contrary notwithstandingMerger Agreement, in no event shall Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of actionother than this Agreement.
Appears in 1 contract
Sources: Escrow Agreement (Wells Real Estate Investment Trust Inc)
Escrow Agent. The Escrow Agent shall have undertakes to perform only those such duties as are specifically and expressly provided set forth herein, which shall be deemed purely ministerial in nature, and no other duties duties, including but not limited to any fiduciary duties, shall be impliedimplied except as required under applicable law. The Escrow Agent has no shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirement requirements to comply with, the terms and conditions of any other agreement agreement, instrument or document between the Parties, in connection herewith, if any, including without limitation the Purchase Agreement, nor shall the Escrow Agent be required to determine if any Party Person has complied with any other agreementsuch 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 shall will control the actions of the Escrow Agent. The Escrow Agent may conclusively rely upon 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 written notice, document, instruction Joint Release Instruction or request delivered by the Parties Final Determination furnished to it hereunder and believed by it to be genuine and to have been signed and presented by an Authorized Representative(s)authorized signer of the proper Party or Parties. Concurrent with the execution of this Agreement, as applicable, without inquiry the Parties shall deliver to the Escrow Agent authorized signers’ forms in the form of Exhibit A-1 and without requiring substantiating evidence of any kind 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 or Final Determination. 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 ’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 To the extent practicable and perform any of its duties hereunder directly or through affiliates or agents. In the event Escrow Agent receives instructionsreasonable, 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 agree to pursue any redress or by a final court order or (b) file an action recourse in interpleader. Escrow Agent shall have no duty to solicit connection with any payments which may be due it, including, dispute without limitation, the Funds nor shall making the Escrow Agent have any duty or obligation a party to confirm or verify the accuracy or correctness of any amounts deposited with it hereundersame. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, incidentalindirect, punitive, indirect incidental or consequential loss losses or damage 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 loss losses or damage damages and regardless of the form of action.
Appears in 1 contract